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DEPARTMENTAL COOPERATION 
IN STATE GOVERNMENT 



•The^>^ o 



THE MACMILLAN COMPANY 

lt»^ YORK • BOSTON • CHICAGO • DALLAS - 
ATLANTA • SAN FRANCISCO 

MACMILLAN & C0.< Limited 

LONDON • BOMBAY • CALCUTTA 
MELBOURNE 

THE MACMILLAN CO. OF CANADA, Ltd. 

TORONTO 



DEPARTMENTAL COOPERATION 
IN STATE GOVERNMENT 



BY 



ALBERT R. ELLINGWOOD, B.C.L. (Oxon.), Ph.D. 

ASSISTANT PROFESSOR OF POLITICAL SCIENCE 
IN COLORADO COLLEGE 



McT* 



N^m fork 

THE MACMILLAN COMPANY 

1918 

All rights reserved 



<6* 



^^l^ 



copykight, 1918 
By a. R. ELLINGWOOD 



JUL -i 1918 



GeorgeJBanta Publishing Company 
Menasha, Wis. 






To 
W. A.W. 



CONTENTS 

Pages 

Introduction rx 

Chapter I. The History of the Advisory Opinion 1 

In England 1 

In the United States 30 

In Canada 79 

In Other States 93 

Chapter n. The Advisory Opinion in Practice 96 

The Source of Interrogations 96 

Nature of Questions 99 

Form of Replies 146 

Effect of Replies upon Interrogators „ 153 

Chapter III. The Interpretation of Advisory Opinion Clauses 161 

Chapter IV. Other Forms of Judicial Influence 238 

Chapter V. The Place of the Advisory Opinion 248 

Appendix 1. Text of Advisory Opinion Clauses of State 

Constitutions 258 

Appendix II. Text of Advisory Opinion Statutes of the 

Dominion of Canada and the Provinces 260 

Appendix III. Text of Advisory Opinion Provisions in 

Central and South American States 267 

Appendix IV. Table of Cases 269 

Appendix V. Bibliography 295 

Index 297 



INTRODUCTION 

During the last decade the searchhght of criticism has 
found a resting place upon the American judiciary with in- 
creasing frequency. The censure of our State judicial systems 
is no longer academic; the thinking citizen body of this democra- 
cy has in many ways expressed its conviction that the courts 
were not giving to the people what the people had a right to 
expect from them, that the judicial system was inefl&cient. 
This generation has witnessed a deplorable shortening of the 
terms of elected judges, and the introduction into our State 
constitutions of the dangerous judicial recall and the illogical 
and indefensible recall of judicial decisions. In some cases 
these "reforms" have been the result of a commendable fear- 
lessness in the exercise of the so-called judicial veto over un- 
constitutional legislation. The legislative trickster has had 
it in his power to shift to judicial shoulders the blame for the 
failure of legislation demanded by his constituency. More 
and more have our judges been involved in "poHtics," at the 
cost of a decreased efficiency as organs of government. They 
have become too close to the people in one sense; their vision 
no longer comprehends all the people, but only a constituency, 
a social group, or economic class; as Rousseau would say, they 
express not the General Will, but the will of a temporary asso- 
ciation of individuals within the state. 

Obviously this calls for correction. In the exuberance of 
our democracy, we have deluded ourselves into thinking that 
the rule of the people in a free state means concrete, tangible, 
personal participation of each individual citizen in the affairs 
of government. We have lost sight of the fact that directing 
the complex affairs of a large poUtical society is a task for 



experts, that the proper function of the citizens of a free democ- 
racy is to choose honest experts to act for them politically, 
and that in proportion as the inexpert meddle directly in govern- 
mental activities, inefficiency will result. In the American 
system of government, all of this appHes especially to the judi- 
ciary. It is, then, especially important that we remove our 
judges as far as possible from factional or sectional politics. 
They should be the impartial and independent distributors 
of justice as approximated in the spirit of a given epoch, fear- 
lessly representing the General Will of the democracy from which 
they derive their authority. 

This, it must be admitted, is an ideal, and is subject to two 
practical qualifications. In the first place, the citizens of our 
States will not agree to such an exaltation of their judiciary 
until they can be induced to place in it a larger measure of 
confidence than they do at present. This calls not only for a 
revision of judicial procedure (a subject which is beyond the 
scope of the present discussion) but also for a readjustment 
of the relations between the three departments of government, 
so devised as to enable the people to fix the responsibility for 
a failure to carry out their clear mandates, and thus make it 
impossible for the executive and legislative departments to 
saddle the odium of disobedience upon the judicial. Secondly, 
although the judiciary must not be trammeled by the political 
entanglements of the other two departments, neither must it 
be out of touch with them. It is a fundamental of the efficient 
government of the future, in a representative democracy, that 
there shall be harmony and cooperation between its component 
parts. Just as the creative power of the legislature and the 
administrative resources of the executive should be unreservedly 
at the command of the courts, if necessary to carry out their 
proper functions, so, too, the experience and skill of the judiciary 
should be at the service of the other departments in time of 
need. 

It is believed that the constitutional device which is de- 
scribed in the following pages will go far towards furnishing 
a solution of this difficult problem. It has been successful 



in the mothef^state from which We derived the basic elements 
of our governmental organization, though in recent times it 
has taken a peculiar form there, scarcely appKcable in the 
United States. It has been developed very successfully in 
several of our own commonwealths, and has attained a clear- 
cut definiteness in the Canadian Dominion and Provinces. 
On its record, as revealed by the present study, it is at least 
worthy of a very careful consideration, with a view to a more 
general incorporation into our State constitutional systems. 
This device is the so-called advisory opinion. For the 
sake of the non-professional readet, not conversant with this 
rather unfamiliar chapter in our constitutional law, a word 
Of two of explanation may not be amiss. It has long been 
recognized that the Anglo-Saxon judicial system, based on 
the case-by-case development of precedent, while valuable 
in many ways, has certain serious defects. This is especially 
tme in the United States where the courts may declare that 
that which has the form of law is of no effect because its enact- 
ment has not been in conformity with the constitution. The 
very particularism of the case-system may bring about grave 
inconvenience, if no one cares to bring a "test case" until after 
many private rights have arisen under the legislation in ques- 
tion. Even though no rights have arisen under a statute,' 
the State has been to the expense of enacting it and securing 
a subsequent judicial declaration of its unconstitutionaUty. 
Again, it is well known that there are many questions of a 
judicial nature that can be brought before a court in regular 
proceedings with difficulty, if at all. A "case," in a court 
of last resort, necessarily involves the adjudication of some 
private right, the settlement, once and for all, of a private 
claim. The judgment specifically determines only the partic- 
ular contention then before the court, though it may, of course, 
become a binding precedent in later cases of a similar nature. 
It is binding upon all the parties to the contention who are 
before the court, and execution will issue to carry it into effect, 
if necessary. The advisory opinion, on the other hand, is 
merely the advice of the judges who compose the court of last 



resort in a given jurisdiction, rendered at the request of certain 
executive or legislative organs. The privilege of requiring 
such advice may be restricted in many ways, for example by 
limiting it to a particular kind of questions. The purpose of 
the scheme is to enable the governor or either house of the legis- 
lature to ascertain the opinions of the supreme court justices 
upon questions of a legal nature, before taking action; in other 
words, to permit them to make the justices their counsellors 
in difficult matters upon which the latter are peculiarly quahfied 
to give sound advice. It is not an adjudication and binds 
no one; the interrogator may or may not follow the opinion, 
as he chooses. In practice, legislative or executive action has 
usually been in conformity with advice so rendered and^the 
matter has been regarded as settled. However, if an individual 
is aggrieved by the result, he is free to complain to the courts 
in regular proceedings and the whole question will be carefully 
considered de novo. From this brief explanation it will appear 
that we have here a constitutional instrument, the potential 
benefit of which is not inconsiderable, while, with intelligent 
use, its potential harm is negUgible. 

In the following pages, the writer has dealt with the advi- 
sory opinion from three standpoints. First of all its historical 
development in England and the United States has been traced 
at some length, not merely as a matter of academic interest, 
but as a necessary preUminary to an adequate understanding 
of the nature of the institution. This is followed by an ex- 
position of the way the advisory opinion has worked in the 
United States, and a statement of the more common rules 
evolved in its practice. Finally, an attempt is made to estimate 
its value in constitutional systems of the American type. 



DEPARTMENTAL COOPERATION 
IN STATE GOVERNMENT 



DEPARTMENTAL COOPERA- 
TION IN STATE GOVERN- 
MENT 

CHAPTER I 

THE HISTORY OF THE ADVISORY OPINION 

A. In England 

The giving of extra-judicial opinion by English judges is 
a practice almost as old as the legal memory defined by statute. 
Indeed, it is a natural outgrowth of the governmental organi- 
zation of the tweKth, thirteenth and fourteenth centuries, and 
both its existence and its nature can be explained and understood 
only after' an examination of the evolution of the EngHsh con- 
stitution during that period. In the Anglo-Norman system, 
separation of powers was practically unknown. The same 
state organ exercised legislative, executive and judicial func- 
tions.^ The king, in whom reposed the sovereignty of the 
state, was not restricted to unlimited executive activity; he 
had the right of general legislation as well, with the advice 
of the Magnum Concilium^ (a group of ecclesiastics and tenants 
in capite who gathered primarily to pay homage) ; and through 
the curia Regis, presided over by the chief-justiciar, he dis- 
pensed such justice as was vouchsafed his subjects. As organic 
differentiation developed, vestiges of the privilege of consulta- 

^Stubbs, C. H., I, p. 366. 
2HaUam, Mid. Ages, II, p. 319. 



2 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

tion and advice enjoyed in the more centralized form not un- 
naturally clung to the legislative and administrative bodies, 
now thrown upon their own uninstructed resources. Because 
of a diversity of practice as well as of historical and juridical 
considerations, it is advisable to consider separately: (1) The 
Judges as advisers to the King in his judicial capacity. (2) 
The Judges as advisers to the King in his executive capacity. 
(3) The Judges as advisers to the House of Lords in its judicial 
capacity. (4) The Judges as advisers to the House of Lords 
in its legislative capacity. 

1. The Judges as Advisers to the King in his Judicial Capa- 
city. At the beginning of the twelfth century, the important 
administrative and judicial powers were vested in the king 
and his curia. ^ This curia Regis was composed of the chief- 
justiciar,^ the chancellor, the steward, the treasurer, the mar- 
shal, and other justitiarii appointed by the king. When sitting 
as a financial body it was known as the exchequer. Within 
a hundred years a division of labor became necessary and 
several bodies succeeded to the duties of the old curia. There 
was the Exchequer, with extensive powers of financial admini- 
stration as well as judicial powers in cases involving the public 
revenue; there was the royal chancery, a clerical body presided 
over by the chancellor, the keeper of the great seal; and finally 
there was a curia Regis in a narrower sense — a body of legally 
trained judges^ which had inherited the judicial powers and 
duties of its ancestral namesake. Of the later sub-division 
of this court into the King's Bench and Court of Common 
Pleas, the development of the Court of the Exchequer and 
the Court of the Chancellor, we are not at present concerned. 
But still there was a residual judicial power in the hands of 
the king, "to be exercised by him in the great council of the 

3 Maidand, C. H., p. 63. Stubbs, C. H., I, pp. 418 sqq. 

* Hallam, Mid. Ages, II, p. 332n. 

'Hallam, Mid. Ages, II, pp. 335 and 421-2. 



HISTORY or THE ADVISORY OPINION 3 

nation, or in some smaller council."^ In theory, of course, 
even till 1875, the Court of King's Bench was coram ipso domino 
Rege; but in fact, long after the time of which we are speaking, 
the king and justices held court together in different parts of 
the kingdom. Maitland tells us^ that "both John and Henry 
III did justice in person," and that only in the fourteenth 
century had it become uncommon for the king to sit in court. 
Still the separation of the executive and judicial organs had 
begun^ and the judges forthwith endeavored to promote that 
separation and secure as complete an independence as possible 
from executive control. 

With these facts in mind, it is easy to explain why the king 
claimed legal advice from his judges, when cases were submitted 
for his adjudication. Naturally, his Concilium expected the 
same assistance when necessary even in the absence of the king; 
and the chancellor, when he created a court of his own to deal 
with cases when the Concilium was not sitting, often sohcited 
the help of the king's judges. In such cases (as matters within 
their province, though not before them for adjudication) the 
judges seem to have acquiesced quite wilHngly in the demands 
made upon them. It appears that in a Scire facias in the 
Hilary term of 13 Edw. Ill, the chief justice and two justices 
of the King's Bench sat in Chancery to pass on questions of 
law^ and the editor of the Year Book thinks that this was 
probably a regular proceeding. ^^ Indeed, in 1401 the Cormnons 
complained that the judges of both the King's Bench and 
Common Pleas were giving so much time to Chancery that 
the administration of the common law was greatly delayed.^^ 

6 Maitland, C. H., pp. 69 and 136. 

' C. H., p. 134. 

* See Maitland, C. H., p. 133, on the abolition of the justiciarship. 

9Y. B. 12-13 Edw. Ill, No. 12. 

^^ Ibid. Intro, ci-cv. 

11 Rot. Pari. 2 Henry IV, No. 95. 



4 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

Opinions have been given to the king even later than this. 
In the Earl of Arundel's Case (1449)i2 the Lords had no leisure 
to examine a case on precedency referred to them by the king, 
and by their advice the king ordered "that the Juges of the 
lawe of the lande beyng in the same Parlement, shuld here, 
see and examyn the seid maters . . . and as they conceyve 
therinne, they to report to the Kynges Highnesse, and to the 
Lordes in the same Parlement." After an examination of 
pleas presented to the king, the judges replied that this was 
a matter for the king and Parhament to determine, ''yet being 
thereto so commanded, they shewed what they found upon 
examination, and their opinions thereupon." The king and 
Lords then decided the case. In the famous Aylesbury Case 
(also known as Paty's Case),^^ when the queen was petitioned 
for a writ of error returnable in Parliament, she referred this 
first to the attorney-general and solicitor-general and later 
to all the judges (on Feb. 21, 1704) asking whether she ought 
to grant the writ of right or of grace. The judges gave the 
written opinion on February 24, ten of them thinking the writ, 
if granted, should be of right, two of grace. Because of the 
disagreement of the Houses of Parliament, the queen finally 
prorogued them without acting at all. 

It remains, in this connection, to advert briefly to the evolu- 
tion of the Privy Council from the Concilium Regis. A per- 
manent royal council, distinct from the curia, had become well 
defined by the beginning of the fourteenth century. Its chief 
function was to advise the king in all matters referred to it 
by him. But it also exercised judicial functions,^^ sometimes 
under statutes of Parliament, more often in spite of the protests 
of that body. This Council, essentially an administrative 
organ of the state, in spite of these persisting judicial powers, 

12 Rot. Pari. 27 Henry VI, No. 18. Also 13 Co. Rep. 63. 
" 14 East 92 (n). Also reported, sub mm. Ashby and White, in 14 
Howell's St. Tr. 695-888. 

" Maitland, C. H., pp. 216 sqq. 



HISTORY OF THE ADVISORY OPINION 5 

is the Privy Council of the time of Edward IV and later. Its 
composition was quite flexible, varying at the will of the king. 
In 1404, it contained three bishops, nine peers, and seven 
commoners. The judges, it seems, did not generally share in 
its dehberations; Fortescue tells us, however, they could be 
summoned by the councilors in case they were needed.^^ All 
matters referred to the Council were dealt with through special 
commissions appointed to examine the facts and report to 
the Council. Usually such reports were accepted after the 
formality of a reading, and the Council rendered judgment 
upon them. If difficult questions of law arose, the judges 
were consulted. "Indeed it was repeatedly enjoined by acts 
of parliament that the lords of the council should in no wise 
decide legal questions without the aid of the justices. On 
one such occasion we read of the justices being interrogated 
individually for their advice. P. P. C. iii, 313."^^ Under 
Charles II, after the Star Chamber experiment, the judicial 
powers of the Council were taken from it. In the eighteenth 
and nineteenth centuries, however, it came to include many 
judges and ex-judges, whose legal advice would be of great 
value. So in 1833 Parhament created a Judicial Committee 
of the Privy Council and provided that "it shall be lawful for 
His Majesty to refer to the said Judicial Committee for hearing 
or consideration any such other matters whatsoever as His 
Majesty shall think fit, and such Committee shall thereupon 
hear or consider the same, and shall advise His Majesty thereon 
in manner aforesaid. "^^ Here again, then, after nearly two 
centuries we have another court^^ created out of the Privy 

""Also the Juges, the Barones off the excheqiiier, the clerks off the 
rolles, and suche lordes as the forsaid counsellours woll desire to be with 
thaym for materes off gret deficulte, mey be off this coimsell when thai be 
so desyred, and ellis not." Fortescue's Governance of England, Chap. 
XV, p. 148. 

i« Baldwin, King's Council, p. 301. 

'' 3-4 Wm. IV c. 41, s. 4. 

i«See (1912) A. C. 571, at 585. 



6 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

Council, and endowed with very large judicial powers (for it 
is the highest court of appeal for England's many colonies). 
At the same time it is the legal adviser of the king on all con- 
ceivable matters.^^ 

Except during the period 1641-1833, a greater or less amount 
of judicial power has resided in the king or the king in council. 
In the exercise of that power, he has always had, and still 
possesses, the privilege of consulting the judges of his courts. 
The increasing separation of powers from the thirteenth cen- 
tury on has not affected this prerogative, and it does not appear 
that the judges have ever refused to give such assistance when 
asked. Whether judges of the King's Bench or other divisions, 
who are not members of the Privy Council, would feel bound 
to answer is open to question. In the case already referred 
to, where the learned Lords of the Judicial Committee acknowl- 
edged their obligation to give any opinion ' requested under 
Section 4 of the Judicial Committee Act, they called attention 
to the fact that they are "all Privy Councillors, bound as such 
to advise the Crown when so required in that capacity. "^^ 
The question of the willingness of the other judges to give such 
opinions will doubtless remain unanswered as long as the Crown 
can refer to such excellent advisers as the Judicial Committee 
Act provides. 

2. The Judges as Advisers to the King in his Executive Capa- 
city. At the close of Edward I's reign, the judicial curia and 
its duties had become quite definite, constitutionally. But 
the point of importance for us to notice is that some or all of 

""Under this clause there is no limit to the extent and variety of 
matters referable by her Majesty to the Judicial Committee. " Macqueen, 
p. 689n. 

"This Committee, exercising most important judicial functions, is 
undoubtedly liable to be asked questions of any kind by the authority of 
the Crown, and the procedure is used from time to time, though rarely and 
with a careful regard to the nature of the reference." (1912) A. C. 571, 
at 585. 

20 (1912) A. C. 571, at 585. 



HISTORY OF THE ADVISORY OPINION 7 

its members are still members of the Concilium Regis, the ad- 
ministrative body "to which the king looks for advice and aid 
in the daily task of government. "^^ The necessity of separate 
judicial organs has become manifest, but the king is loath to 
deprive himself of valuable assistance and expert counsel from 
whatever quarter it may come. In the fifteenth century, 
though the judges were not in regular attendance upon the 
Concilium^ their presence could be requested in case of neces- 
sity .^^ As long as this state of affairs continued, the king, it 
seems, commanded the advice of his judges, even in admini- 
strative questions. Hallam asserts that the Council appear 
to have advised the king as to his approval of laws passed by 
Parliament, regularly during the reigns of Edward I and Edward 
11.2^ Whether the king, apart from the Council, can consult 
the judges on administrative matters is not clear. But it is 
more than reasonable to suppose that he would deem their 
intermittent membership in the Council and their immediate 
dependence on him as the fountain of all justice sufficient 
reasons for claiming their advice, especially in matters of a 
legal character, and also, to a certain extent, in questions 
pertaining to his executive rights and duties apart from the 
enforcement of the laws. Illustrations of inquiries of both kinds 
are not wanting. 

In 1388, Richard II commanded the opinions of the judges 
on a set of questions concerning certain acts of the last Par- 
liament, and secured from them sealed statements that his 
ministers could not be impeached without his consent, that 

2iMaitland, C. H., p. 91. See also Hallam, Mid. Ages, III, p. 138. 

2- "In the actual records of the privy council it is a constantly recur- 
ring regulation that the judges are to be consulted in all matters touching 
the king's prerogatives or freeholds (P. P. C. iii, 151, 217; iv, 63). Many- 
instances of the presence of the judges are recorded in the Proceedings of 
the Council." Fortescue, 297. Plummer, the modem editor of Fortes- 
cue's Governance of England, gives several such instances in the Intro- 
duction, pages 46-7. 

23 Mid. Ages, III, p. 142. 



8 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

the impeachment of his favorite, the Earl of Suffolk, could 
be revoked, that the statute establishing a commission of 
reform was derogatory to his prerogative and those who passed 
it guilty of treason, that the king's business took precedence 
in Parliament, and that he could end the sessions of Parliament 
at his pleasure.^ These opinions as given were probably 
extorted by threats,^^ but it does not follow that the judges 
questioned the king's right to consult them, if only he did not 
dictate their answers. 

Macqueen^^ cites an interesting case (dated May 9, 1624) 
where James I refused to give his royal assent to a bill which 
had passed both Houses until the judges had given him their 
opinions as to whether it would be retroactive in certain re- 
spects or not; he finally assented, relying on their negative 
answer "as a principal motive." 

George I, in 1717, sent a letter by the Lord Chancellor to 
the judges requesting them to meet and give their opinions 
as to whether or not the education and care of his Majesty's 
grandchildren and the Prince of Wales, the ordering of their 
abode, the approbation of their marriages, etc., belonged of 
right to his Majesty. The judges apparently did not question 
their duty to comply, indeed impliedly admitting it in their 
reply to the request of the Prince of Wales to hear counsel 
in his behalf, ''that in cases wherein our advice is required by 
His Majesty, we cannot hear counsel without His Majesty's 
leave. "2^ After a prolonged consideration of the case they 
gave their opinions seriatim?^ 

The same monarch, in Sir John Fenwick's Case^^ requested 
the judges and attorney-general "to consider of the King's 

2<Hallam, Mid. Ages, III, p. 72. 

^ See report in Fortescue, p. 392, based on Rushworth, Appendix, 
p. 261. Also Hallam, I.e. 
2* House of Lords, p. 54. 

" The king later granted permission for counsel to be heard. 
28 Fortescue, p. 401. Also 15 Howell's St. Tr. 1195. 
2' Fortescue, p. 385. 



HISTORY or THE ADVISORY OPINION 9 

pardoning the judgment;" and they all were "of opinion that 
the King could pardon all or any part of the judgment; and in 
this case all the judgment in high treason was pardoned, except 
severing his head from his body, and he was beheaded accor- 
dingly." 

However, cases of this nature are infrequent. Most of 
those which have found their way into the reports are, quite 
naturally, cases of a judicial nature. When the king is especial- 
ly interested in a prosecution, he may attempt to ehcit from 
the judges in advance of the adjudication in court an opinion 
as to the state of the existing law or e% parte suggestions to 
the prosecution on questions of procedure or even an actual 
decision on the merits of the case.^^ 

Thus in Stafford's Case (1485)^^ where the defendant was 
taken from a sanctuary under the protection of the Abbot of 
Abingdon and held for trial in the king's court, the judges 
were asked to give an opinion at once, before the day set for 
the hearing. They objected, "How can we debate this matter 
which will come before us soon? and it is not good order to 
argue this matter, and give our opinions, before it comes before 
us judicially. The Attorney- General said, if the King knew 
that the sanctuary would save him, it should not come before 
them." But Hussey, C. J., went personally to the king and 
besought him, " that he would not desire to know their opinions 
beforehand ... for they thought it should come before them 
in the king's bench judicially, and then they would do that 
which of right they ought; and the king accepted of it." 

James I indulged in the most unsparing abuse of the con- 
sultative power in cases of a judicial nature in the history of 

^° Another common method of interfering with the course of justice 
is to insist on the postponement of the hearing to a time more convenient 
for the prosecution, as in the Cormnendams Case. See Bacon's Works, 
IV, pp. 631 and 636. 

3iFortescue, 389. Coke, Inst. Ill, pp. 29-30. See also 2 Howell's 
St. Tr., 879n and Y. B. Pasch. 1 Henry VII, 15. Trin. 1. 



10 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

the English constitution. He was undoubtedly zealously 
aided by the ever-active Sir Francis Bacon, who was animated 
perhaps both by his ambition and his envy of Lord Coke, then 
chief justice of the King's Bench; for most of the cases are 
during the period when Bacon was attorney-general and he is 
most assiduous in pressing them upon the judges. Gross 
subversion of justice and a serious invasion of the independence 
of the judiciary were only prevented by the courageous defiance 
of that sturdy bulwark of the common law, Lord Coke. Two 
or three cases will illustrate the situation. Best known of 
all is the case of Peacham,^^ a,n enthusiastic clergyman too fond 
of privately scribbling sermonical tirades against the govern- 
ment never intended to reach the ears of others than himself. 
His house was searched and several "treasonable" utterances 
brought to light. The king, apparently, was uncertain whether 
a prosecution for treason would stand and directed Bacon, 
with the aid of the solicitor and several sergeants, to sound the 
judges. The original design was to prevent joint action and 
one interrogator was assigned to each judge, Bacon braving 
the chief justice himself. The first encounter was discouraging, 
for Coke affirmed "that such particular . . . and auricular 
taking of opinions was not according to the custom of this 
realm," and doubted whether his brethren would yield.^' 
Bacon's collaborators^'* were received with more favor; Crook, 
J., and Houghton, J., were both wilUng to answer, and 
Dodderidge, J., declared that "every judge was bound ex- 
presly by his oath, to give your Majesty counsel when he was 
called; and whether he should do it jointly or severally, that rested 

3- Bacon's Works, IV, pp. 593-601. 2 Howell's St. Tr. 871. 

33 Bacon's Works, IV, p. 593. 

3* They were instructed by Bacon, "that they should not in any case 
make any doubt to the judges, as if they mistrusted they would not deliver 
any opinion apart, but speak resolutely to them, and only make their com- 
ing to be, to know what time they would appoint to be attended with the 
papers. " 



HISTORY OF THE ADVISORY OPINION 1 1 

in your Majesty's good pleasure." Bacon later delivered 
Peacham's papers to Coke, who received them, but with the 
protest " that judges were not to give opinion by fractions, but 
entirely according to the vote, whereupon they should settle 
upon conference: and that this auricular taking of opinions, 
single and apart, was new and dangerous. "^^ A letter of 
February 11, 1614,^^ tells us that when Coke heard that the other 
judges had finally given their opinions, he promised that his 
would be ready in a short time. Presumably they are the 
"answers" enclosed in the letter of February 14th.^^ 

It should be noted that the independent Coke rests his 
objections upon the ''particular" taking of opinions, when 
the judges are consulted one by one and are not permitted to 
confer. Maitland^^ says Coke himself, when solicitor and 

^L.c, p. 596. 

36Z.C., p. 601. 

3^ L.c, p. 601. The comments of Foster on this case are well worth 
quoting: "And perhaps still less Regard will be paid to it if it be considered 
that the King, who appeareth to have had the Success of the Prosecution 
much at Heart, and took a Part in it unbecoming the Majesty of the Crown, 
condescended to instruct His Attorney-General with regard to the proper 
Measures to be taken in the Examination of the Defendant. That the 
Attorney at His Majesty's Command submitted to the Drudgery of sound- 
ing the Opinions of the Judges upon the Point of Law, before it was thought 
advisable to risque it at an open Trial. That the Judges were to be sifted 
separately and soon, before they could have an Opportunity of conferring to- 
gether. And that for this Purpose four Gentlemen of the Profession in the 
Service of the Crown were immediately dispatched, one to each of the 
Judges; Mr. Attorney himself undertaking to Practise upon the Chief Jus- 
tice, of whom some Doubt was then entertained. 

"Is it possible that a Gentleman of Bacon's great Talents could submit 
to a Service so much below his Rank and Character! 

"This Method of forestalling the Judgment of a Court in a Case of 
Blood then depending, at a Time too when the Judges were removable at 
the Pleasure of the Crown, doth no Honour to the Memory of the Persons 
concerned in a Transaction so insidious and unconstitutional; and at the 
same Time greatly weakeneth the Authority of the Judgment." Crown 
Law, pp. 199-200. 

38 C. H., p. 270. 



12 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

attorney-general, had often asked for extra-judicial opinions. 
Bacon seems to have felt some diffidence about pressing the 
"particular" feature too far, for on the same day that the 
judges gave their answers in Peacham's Case, he writes the 
king of a conference between himself, his legal assistants and 
all the judges (including Lord Coke), concerning the prosecution 
for treason of one Owen.^^ He adverts to the suggestion of 
the king that the ''taking of opinions apart . . . which was 
prescribed and used in Peacham's cause" be practiced here, 
but says they thought it unnecessary ''in a case so clear. "^^ 
The papers were left with the judges and Bacon thinks there 
will be no doubt of the result. Again in the proceedings against 
the Earl and Countess of Somerset, the attorney-general several 
times consulted the judges extra- judicially as to the best course 
to be followed, always at the king's direction.'*^ Other cases 
might be cited from Bacon's writings and' elsewhere, but these 
serve to indicate the practice of that time. 

There seems to have been no question of the obligation 
of the judges to respond to the king's interrogatories, even 
though it involved passing upon a case which might come 
before them judicially in a short time. Dodderidge, J., in the 
reply quoted above, does not qualify the obligation in any way; 
and though Coke objected to the "auricular taking of opinions, 
single and apart," he seems to have given his opinion in every 
case. True, when he was no longer a judge he protested against 
the whole custom, and argued well against its desirability,^ 

39 Bacon's Works, IV, pp. 321 and 600. 

*° "Yet both my lords of the council, and we amongst ourselves, holding 
it, in a case so clear, not needful; but rather that it would import a diflidence 
in us, and deprive us of the means to debate it with the judges (if cause 
were) more strongly (which is somewhat) we thought best rather to use this 
form," i.e. a common conference. Bacon's Works, IV, p. 601. 

" See Letters No. 131 to 138, Bacon's Works, IV, pp. 616-25. 

*^"The Judges ought not to deliver their opinions beforehand of any 
criminall case, that may come before them judicially; . . . especially in cases 
of high nature, and which deserve so fatall and extreme punishment. For 



HISTORY OF THE ADVISORY OPINION 13 

but his practice on the bench was in conformity with the pre- 
vaihng doctrine that the judges were bound to give the king 
legal advice whenever he requested it.'*^ 

Charles I appears to have been more sparing in exercising 
his privilege, but extra-judicial opinions were still given. In 
the case of Stroud, Long, et al.,^ the king, before proceeding 
in the Star Chamber against the members of the House of 
Commons who had been imprisoned by him, caused the attor- 
ney-general to request the opinions of the judges on certain 
questions as to the privileges of a member of Parliament not 
to be punished for speeches in the House, as to how long such 
immunity extended, etc., to all of which the judges gave their 
replies. But when asked if a member of Parliament could be 
punished for saying in Parliament that "the Lords of the 
Council and the Judges had agreed to trample upon the Liberty 
of the Subject and the Privileges of ParHament," they "desired 
to be spared to make any answer thereunto, because it con- 
cerned themselves in particular. " And they replied to another 
question that as it was a point of law, it "would not be for the 
honor of the king nor the safety of the subject" to deal with 
the case in Star Chamber. The king dropped the Star Chamber 
proceedings, but kept the men in prison, and when habeas 
corpus was sought, he removed them to the Tower and refused 
to produce them in court. On Michaelmas (1629), he summoned 
Hyde, C. J., and Whitelocke, J., to Hampton for private ad- 
vice. During the next term, the court gave its opinion that 
the men should be released on bail. Other cases of consultation 
may be inferred from the statement of the son of Whitelocke, 
J.,^^ that his father "did often and highly complain against 

how can they be indifferent, who have delivered their opinions before- 
hand without hearing of the party, when a small addition, or subtraction 
may alter the case." Coke, Inst. Ill, p. 29. 

^Maitland, C. H., p. 270. 

*<3 Howell's St. Tr., 235. 

^ Memorials, p. 14. 



14 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

this way of sending to the Judges for their Opinions beforehand. " 
Indeed Fortescue records another case from the time of the Re- 
storation, when ''the Judges met to consult concerning the 
prosecution of the regicides, and the Attorney-General made 
several queries, not only in framing of the indictments, but 
in relation to overt acts and evidence, in which all the Judges 
gave their opinions. "^^ 

The legal force of judicial responses to the king's questions 
at this period cannot easily be determined. The king seems 
to have acted in accord with advice so given in general, as in 
the Star Chamber case of 1629. But would the judges have 
felt bound to follow these opinions, if the same case came 
before them later in court? This is an important point in the 
light of the present practice in the United States, as will be 
seen, but it seems impossible to settle it. Beckman v. Maples- 
den (1662)^^ throws a little light on the question. Bridgman, 
C. J., tells of a dispute in New Sarum between the mayor and 
certain vintners regarding the measures used, which was by 
the Lords of the Council referred for decision to certain judges 
who passed ''resolutions" covering the disputed points. He 
then continues, "as for the objection made from the resolu- 
tion of the Judges in 1583, I give these answers to it, that 
it was an extra-judicial opinion; and though I must give rev- 
erence to the opinions of the Judges, yet I make a difference 
between cases adjudged upon debate and having counsel on 
both sides, and resolution upon a case reported or referred to 
them."^^ But would he extend this principle to carefully 
weighed opinions solemnly given to the king? 

An express reservation on this very point was made in 
Whiston's Case (1711).^^ There was some doubt as to whether 
Convocation could take original jurisdiction in a case of heresy, 

" Fortescue, 389, on the authority of Keyl. 9, 10. 

*'Bridg. 60. 

" L.c. at p. 78. 

" Burnet's Own Times, p. 867. 



HISTORY or THE ADVISORY OPINION 15 

and the upper house requested the queen to obtain the opinions 
of the judges, which she did. Eight judges and the attorney- 
general and sohcitor-general said they had jurisdiction, "but 
brought no express law or precedent to support their opinion; 
. . . they were also of opinion, that an appeal lay from the 
sentence of convocation to the crown; but they reserved to 
themselves a power to change their minds, in case, upon an 
argument that might be made for a prohibition, they should 
see cause for it." Four were contra, but the queen said Con- 
vocation should proceed, as there was no doubt of the juris- 
diction. The same principle was enunciated in the case of 
Lord George Sackville in 1760.^° "But as the matter may 
several ways be brought, in due course of law, judicially before 
some of us by any party affected by that method of trial, if he 
thinks the court has no jurisdiction, or if the court should 
refuse to proceed in case the party thinks they have jurisdiction; 
we shall be ready, without difficulty, to change our opinion, 
if we see cause, upon objections that may be then laid before 
us, though none have occurred to us at present which we think 
suf&cient. " And Mansfield reiterated this proposition in his 
note to the Lord Keeper enclosing the opinion. ^^ The exis- 
tence of this opinion is of considerable weight in determining 
the constitutional practice, for it is subscribed to, without 
protest other than the reservation mentioned, by judges of 
great authority .^^ 

It will be convenient to stop a moment to summarize the 
practice at this period, because it was shortly after 1760 that 

50 2 Eden, 371. 

""The judges . . . are exceedingly thankful to his Majesty for his 
tenderness in not sending any question to them till the necessity of such 
reference became manifest and earnest. ... In general, they are very 
averse to giving extra-judicial opinions, especially where they affect a parti- 
cular case; but the circvmistances of the trial now depending ease us of diffi- 
culties upon this occasion, and we have laid in our claim not to be bound 
by this answer." 

" Mansfield, C. J., Willes, Parker, Denison, Foster, Smythe, Adams, 
Bathurst, Wilmot, Noel, Lloyd, JJ. 



16 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

the advisory opinion was introduced into the American judicial 
system. It was well recognized that the judges were bound to 
advise the Crown at his request. But the judges were averse 
to giving such opinions and preferred to do so only when " the 
necessity of such reference became manifest and earnest."^ 
(Compare this with the "important question and solemn occa- 
sion" clause of the United States practice). Also judicial senti- 
ments severely condemned the giving of opinions in any partic- 
ular case,^ especially in criminal cases. Even in 1485, Hussey, 
C. J., had taken this stand in criminal cases ;^ and Coke reiterated 
it emphatically in 1628,^^ though his practice did not do justice 
to his theory. Hargrave (writing in 1775) says that it is 
undesirable to give opinions in advance of any case already 
pending.^'^ Finally, in the eighteenth century, the judges have 
enunciated the principle that they will not be bound in actual 
cases argued before them by extra-judicial opinions previously 
given. 

Lord Sackville's Case is the last advisory opinion the records 
disclose. Very likely the questioning of the judges by the 

" Mansfield's Note in Lord Sackville's Case, 2 Eden, 371. 

5* See Mansfield's Note just quoted. And cf. Foster's criticism of 
Peacham's Case (wnitten in 1762) — see note on p. 11 supra; Foster was one 
of the judges in Sackville's Case. 

" Stafford's Case — see p. 9 supra. 

««Inst. Ill, pp. 29-30. 

^^ "But however numerous and strong the precedents may be in favor 
of the King's extra-judicially consulting the judges, on questions in which 
the crown is interested, it is a right to be understood with many exceptions, 
and such as ought to be exercised with great reserve, lest the rigid impar- 
tiaUty so essential to their judicial capacity should be violated. The anti- 
cipation of judicial opinions on causes actually depending, should be parti- 
cularly guarded against; and therefore a wise and upright judge will ever 
be cautious how he extra-judicially answers questions of such a tendency. 
... It would be a presumption in us, if we were to be more particular 
on a subject of so much delicacy, by attempting to mark the bounds to a 
right, the extent of which we do not find clearly ascertained by precedent 
or authority." Co. Litt. 110, Hargrave's Note. 5. 



HISTORY OF THE ADVISORY OPINION 17 

Crown is a practice "almost or altogether obsolete," desuetude 
for one hundred and fifty years having rendered "unconstitu- 
tional in the sense in which that term is understood in England, 
any attempt to repeat such an experiment," as has been sug- 
gested by the Judicial Committee of the Privy Council.^^ 
This is a purely academic question now, since under the Judicial 
Committee Act^^ already referred to, the king may obtain as 
good legal advice as can be had in England on any point what- 
soever.^^ The Crown can ask for opinions on particular cases 
under this act and indeed has actually done so.^^ It may be 
interesting to observe that the Local Government Act of 1888^^ 

^* (1912) A. C. 571, at 586. But compare the opinion of Fitzpatrick, 
C. J., in 43 Can. S. C. R. 536 (1910): "The members of this court are the 
official advisers of the executive in the same way as the judges in England 
are the counsel or advisers of the king in matters of law. ... In England 
the practice of calling on the judges for their opinion as to existing law is 
well established." He goes on to point out that the principal case does 
not call for the anticipation of a regular decision in court, and that the 
opinion if given would not be binding — cf. Mansfield in 1760. 

59 3-4 Wm. IV c. 41, s. 4. 

«« Cf. (1912) A. C. 571. at 585. 

^^ In re Schlumberger (1853), 9 Mo. P. C. 1. Note especially the words 
of Dr. Lushington (speaking for the Committee) at p. 12: "The only con- 
struction which can be placed upon the fourth section of 3 and 4 Wm. IV 
c. 41 is a construction which shall give full and complete meaning to the 
words therein contained, without any hmitation whatsoever. . . . Their 
Lordships are of opinion that there is enough in this reference not merely 
to justify, but absolutely to require them to proceed, because this is re- 
ferred to them by an Order in Council . . . (which) falls within the . . . 
provisions of the Statute." 

^2 "If any question arises, or is about to arise, as to whether any busi- 
ness, power, duty or liabiHty, is or is not transferred to any county coimcil 
or joint committee imder this Act, that question, without prejudice to any 
other mode of trying it, may, on the application of a chairman of quarter 
sessions, or of the county council, committee, or other local authority con- 
cerned, be submitted for decision to the High Court of Justice in such sum- 
mary manner as, subject to any rules of Court, may be directed by the Court; 
and the Court, after hearing such parties and taking such evidence (if any) 
as it thinks just, shall decide the question." 51-52 Vic. c. 41, s. 29. 



18 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

provides that certain local executive bodies may refer questions 
of a particular nature to the High Court of Justice for a "de- 
cision." In Ex parte County Council of Kent and Council 
of Dover ,^^ Lord Halsbury, L.C., held that no appeal lay from 
such a "decision." It is not a judgment, order of court or 
decree. The application is consultative only and may cover 
cases about to arise; furthermore it is to be without prejudice 
to other modes of trying the question. 

But although the practice of referring questions to the 
judges is now obsolete (in the absence of statute), and although 
a modern Judicial Committee frowns upon the "earher practice 
in bad times" as of no weight with them at the present time, 
especially in the light of disuse for one hundred and fifty years,^ 
it is of great importance, for an understanding of the advisory 
opinion in the United States, that we should know what EngUsh 
statesmen, judges and legal writers deemed to be the legitimate 
practice, under the constitutional law of England in 1760. 
For, as the Massachusetts court pointed out in 1878,^^ the intro- 
duction of the advisory opinion clause in the constitution of 
Massachusetts of 1780 (its first appearance in the United States) 
"evidently had in view the usage of the English Constitution 
by which the King, as well as the House of Lords, whether 
acting in their judicial or in their legislative capacity, had the 
right to demand the opinions of the twelve judges of England. " 
The form of the clause is exphcable largely because of its English 
antecedents, and it is more than probable that certain impor- 
tant opinions (now regarded as "leading" in character) had 
their source in the practice of the English judges. 

3. The Judges as Advisers to the House of Lords in its Judicial 
Capacity. The obligation of the judges to give advice in matters 
of law to the House of Lords when that body is acting as a 
court rests on the fact that they are members of the House and 

« (1891) 1 Q. B. 725. 

"(1912) A. C. 571, at 586. 

•^Opinion of the Justices, 126 Mass. 557. 



HISTORY OF THE ADVISORY OPINION 19 

consequently at its command. From the time of Edward I 
to the present day, the judges have been summoned to Parlia- 
ment, along with the prelates and barons. They are not 
peers — the writ runs cum prelatis, magnatibus et procerihus, 
not cum ceteris prelatis , etc.;^^ but as members of the upper 
house it is their duty to give counsel to the king." It must be 
remembered that the king dispensed justice in ParHament as 
well as in the various Councils, and the advice of the judges 
on such occasions would be especially desirable. Note par- 
ticularly that the commune concilium regni, one of the most 
important founts of justice, was composed chiefly of the peers 
and the judges. Here, too, the learning of the judges could 
be drafted into service. Appeals lie either to this council or 
to Parliament.^^ A little later, this jurisdiction was restricted 
to ParHament alone,^^ but the habit of looking upon the peers 
in the commune concilium as judicial authorities seems to have 
discouraged the Commons from attempting to associate them- 
selves with the upper house in exercising the judicial functions 
of the ''king in Parliament. "^° So this phrase, in a judicial 
sense, came to mean the king and the House of Lords. '^^ But 
gradually, in the fourteenth and fifteenth centuries the king 
ceased to sit with the House in judicial matters, and the House 
succeeded to (perhaps received by delegations^) the final appellate 
jurisdiction of the "king in Parliament." Meanwhile the posi- 
tion of the judges in this supreme court has been changing. 
Matthew Hale conjectured that at an early date they had a 

66 Maitland, C. H., p. 176. 

67 "The use of the words 'tractaturi et consilium vestrum impensuri' 
marks the theoretical position of the upper house and its attendant judges; 
they are coimsellors preeminently; no such words occur in the writs imder 
which the representative members are elected." Stubbs, C. H., Ill, p. 393. 

68 Maitland, C. H., p. 136. Stubbs, C. H., II, pp. 272 sqq. 

69 Stubbs, C. H., Ill, pp. 476 sqq., especially note 2 on page 477. 
" Stubbs, C. H., II, pp. 258-9. 

71 Maitland, C. H., pp. 136 and 214. 
"HaUam, Mid. Ages, III, p. 144. 



20 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

voice in judicioJ^ But before the end of the Middle Ages 
(Macqueen^^ says since Edward III) it was a settled principle 
that they had no vote and were only to give their opinions 
when asked. '^^ Thus in 1403, when a petition from the Duke 
of Northumberland in the nature of a plea against a charge of 
treason was referred (qu., by whom?) to the justices for exami- 
nation to get their counsel and advice, it was "contrary to the 
wish of the Lords, who thought judgment belonged to them 
alone. "'^ And the king and Lords later gave judgment. Here 
there is evidence that the Lords feared that soliciting the advice 
of the judges might admit them to share in the judgment. 
But that has completely disappeared by the middle of the 
century, as may be seen from the Earl of Arundel's Case^^ and 
again in Thorp's Case.^^ In the latter case, the speaker of the 
Commons had been imprisoned upon a judgment in trespass, 
and the lower house petitioned the king and Lords that he be 
released under privilege of Parliament. The Lords stated the 
case to the judges and asked if Thorp should be set free; but 
the judges, after conference, replied that they^ should not 
answer the question or determine the privileges oi Parliament, 
for this was a duty belonging to the Lords ;^^ it was added, 
however, that if the same question were raised in a lower court 
(except in case of treason, felony, breach of the peace, or a con- 
demnation by Parhament), the prisoner would be released to 
attend Parliament. The Lords declined to take the same course 
and commanded the Commons to elect another speaker. 

" Hale's Jurisprudence, p. 59. 

'* House of Lords, pp. 36-7. 

'^Maitland, C. H., p. 84. 

" Rot. Pari. 5 Henry IV, Nos. 11 and 12. 

'^ See page 4 supra. 

"Rot. Pari. 31 Henry VI, Nos. 25, 26, 27, and 28. 

^'The Lords, "to have knowlegge what the la we will wey in that 
behalve, opened and declared to the Justices the premissez, and axed of 
theym whether the seid Thomas ought to be delivered from prison, by force 
and vertue of the Privelegge of Parlement or noo. To the which question, 



HISTORY OF THE ADVISORY OPINION 21 

In the Duke of York's Case (1460)^^ which involved the 
title to the throne, the judges were only too glad to keep out 
of the controversy altogether, and volunteered no advice at 
all. Two interesting points may be noted. They were not 
merely asked for an opinion as to the state of the law, but were 
requested "sadly to take avisament therin, and to serche and 
iynde all such objections as myght be leyde ayenst the same, 
in fortefying of the Kynges right." This brought forth the 
excuse that they ''have to determyne such maters as com before 
thejnn in the lawe, betwene partie and partie, and in such maters 
as been between partie and partie they may not be of Coun- 
seill."^^ But they pleaded also that "in especiaU the mater 
was so high, and touched the Kjmgs high estate and regalie, 
which is above the lawe and passed ther lernyng . . . and 
therfore they humble bysought all the Lordes, to have theym 
utterly excused of eny avyce or Counseill, by theym to be 
yeven in that matier." 

But in spite of these protests, there can be little doubt 
that in ordinary cases the judges were consulted frequently. 

the chefe Justicez in the name of all the Justicez, after sadde communica- 
tion and mature deliberation hadde amonge theim, aimswered and said; 
that they ought not to aunswere to that question, for it hath not be used 
afore tyme, that the Justicez shuld in eny wyse determine the Privelegge of 
this high Court of Parlement; for it is so high and so mighty in his nature, 
that it may make lawe, and that that is lawe it may make noo lawe; and 
the determination and knowlegge of that Privelegge belongeth to the Lordes 
of the Parlement and not to the Justices." 

8" Rot. Pari. 39 Henry VI, No. 12. Fortescue, 384. 

8^ Baldwin (King's Coimcil, p. 122), I think, misunderstands this. He 
interprets the second "partie and partie" as referring to pohtical parties, 
whereas the emphasis is upon the contrast between determining matters 
before them and merely acting as counsel. He also says the judges were 
rebuked for their refusal because "they were the King's particular coun- 
cillors and therefore they had their fees and wages." But from the Rolls 
it seems this applies only to the Sergeants and Attorney who were also sum- 
moned as " Conseillers. " This last point is not quite clear, but there seems 
to be no record of further replies from the judges. 



22 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

During the seventeenth century, it seems they were in constant 
attendance upon the House of Lords, were even required to 
get a leave of absence to go upon their circuits, and were severely 
reprimanded for a failure to be present when their assistance 
was required. ^2 Coke recognizes the practice,^ though with 
the qualification that it does not belong to them (the judges) 
''to judge of any law, custome or priviledge of Parliament," 
It will be remembered that the words of their writ of summons^ 
do not even admit of this reservation. Apparently the opinions 
asked by the House of Lords on the petition for a writ of habeas 
corpus in the Aylesbury Case^ were granted without question. 
Again in 1760^^ the Lords asked whether an earl whom they 
had convicted of murder should receive judgment under a cer- 
tain statute, and whether, if the day first set for execution lapsed 
without execution, a new day could be set; and the judges 
replied promptly, the House of Lords acting in accordance 
with their opinion. 

Just before the American Revolution, then, it was well 
settled that the judges were, in general, bound to give advice 
requested on questions of law arising in cases before the House 
of Lords as a court. It is doubtful whether, in strict law, they 
had a right to refuse under any circumstances. They had given 
opinions in concrete (not hypothetical) cases, though this prac- 
tice did not persist much longer. They had disclaimed any 
jurisdiction in important cases of a political nature and in 
cases involving questions of Parliamentary privileges, though 
even here advice was appended to their disclaimers. There 
is no example of a failure to advise except the Duke of York's 
Case, and in that the House of Lords requested much more 
than judicial advice; even there the alternative excuse offered 

^^Macqueen, House of Lords, pp. 37-40. 

«Inst. IV, p. 50. 

" See Note 67 on page 19 supra. 

« 14 East, 92n. 14 Howell's St. Tr., 695. 

«« Ferrer's Case. Foster's Crown Law, p. 138. 



HISTORY OF THE ADVISORY OPINION 23 

hy the judges did not deny their obhgation to answer, but as- 
serted their inabihty and lack of jurisdiction of such matters. 
The binding effect of their answers has not been discussed. 
Of course they would not be binding on the House of Lords 
because it was a superior court; and the question of their binding 
effect upon the judges could hardly arise, as the cases in which 
they were given could not very well come before the judges 
later. 

A brief survey of the nineteenth century practice will not be 
amiss. It was accepted doctrine before the Judicature Act 
that the constitutional advisers of the House of Lords included 
the judges of the King's Bench and of the Common Pleas, the 
Barons of the Exchequer and the Master of the Rolls. ^'^ Since 
1875, semble, the justices of the High Court have succeeded to 
this duty.^^ They do not attend regularly and usually by 
special order only.^^ Since it has become the settled practice 
of the House that only "law lords" are to sit in appeal cases, 
and especially since the legal ability of the court has been 
assured by the statute of 1876 which requires that three "law 
lords" must be present, the consultation of the judges has be- 
come increasingly infrequent. It took place in one hundred 
and twenty-five cases from 1827 to 1899, only four of which 
were later than 1876.^° The last important example within 
my knowledge is the great case of Allen v. Flood, (1898) A. C. 
1; but the judges were also consulted in The Trial of Earl 
Russell, (1901) A. C. 446. 

Of course the opinions of the judges are not binding upon 
the House, even when they are unanimous. "The House 
pays great regard to the opinions of the Judges, especially 
when concurrent; but the House cannot transfer to others the 

^^Macqueen, House of Lords, p. 35. 
88Maitland, C. H., p. 84. 

*^ For the details as to procedure when the judges are summoned to 
attend to give advice, see Macqueen, House of Lords, pp. 256-8, 416. 
»oV. V. Veeder in Harv. L. R. XHI, 358. 



24 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

constitutional responsibility which attaches to the adjudication 
of causes in the court of last resort. "^^ But as a matter of fact 
it is claimed that only in five cases in recent times has the 
House given judgment contrary to the opinion of a majority 
of the judges. ^2 

In contrast to the earlier practice, exphcit decisions of con- 
crete cases are never given. The judges do not even suggest 
judgments, but merely give their opinions on abstract questions 
of law propounded by the House; ''but the questions propound- 
ed are usually so framed as to embrace abstractedly all the 
difficulties of the particular case in hand."^^ On the other 
hand, it seems to be the better opinion that the questions put 
to the judges must relate to the case before the House. In 
Bright V. Hutton^^ an appeal was taken on the question of 
the amount of contribution payable by a company in winding- 
up proceedings. The judges were ordered to attend, and 
when the case came up for argument, the Lords requested a 
preliminary discussion as to whether the company in question 
came within the Winding-Up Acts. Both counsel protested 
that this was not within the scope of the appeal and Lord 
Brougham replied: ''We have now the advantage of the at- 
tendance of the Judges; we frequently put questions to them 
besides those which are the questions in the cause. . . . We 

^^ Macqueen, House of Lords, pp. 49-50. Compare the words of 
Eldon, L. C, in Head v. Head (1 Turner and Russell, 138, at 140): "The 
answers given by the Judges therefore, although entitled to the greatest 
respect, as being their opinions communicated to the highest tribunal in 
the Kingdom, are not to be considered as judicial decisions." 

82 V. V. Veeder in Harv. L. R. XHI, 358. 

83 Macqueen, House of Lords, pp. 47-8. And compare Head v. Head 
(1 Turner and Russell, 138), per Eldon, L. C, at p. 140: "Now it is weU 
known that the questions proposed to the Judges by the House of Lords, 
though made to approximate so nearly to the questions to be determined, as 
to enable the House to form a judgment on the case actually before it, can- 
not be the very questions which the House is called upon to decide." 

"3 H. of L., 341. 



HISTORY OF THE ADVISORY OPINION 25 

are not bound by the form of an appeal as to any questions 
we may think fit to put to the Judges." The point was then 
argued and the judges held that the company came within 
the acts. Lord Brougham then explained that if the judges 
had held the contrary opinion and the House had agreed with 
them, they should not have gone on with the case, but as it was, 
argument would be heard on the point under appeal. So it 
appears that the question first submitted to the judges here 
was really necessary to the case, and Lord Brougham, in the 
words cited above, apparently only meant that the House 
could put questions collateral to the case in hand. It is un- 
hesitatmgly stated by the House in (1912) A. C. 571, at 585, 
that the House may ask " such questions as it may think neces- 
sary for the decision of the particular case. That is a very 
different thing from asking questions unconnected with a pend- 
ing cause as to the state or effect of the law in general." 

4. The Judges as Advisers to the House of Lords in its Legis- 
lative Capacity. In the Anglo-Norman period, as observed 
above (see p. 1), large powers of legislation were vested in the 
king and his Magnum Concilium}^ The judges, as members 
of this Concilium, not only advised as to legislation, then, but 
actually participated in its enactment. Legally, their power 
was coextensive with that of the peers; they were all summoned 
for the same purpose, namely, colloquium habere et tractatum. 
Possibly the omission of "ceteris'^ and "fide et homagio'^ and the 
insertion of "ceterisque de consilio nostro," are to be interpreted 
as modifying their perfect equality with the Lords in debate. ^^ 
From whatever cause, it is true that in the course of time the 
judges confined their participation to interpreting existing law 
and giving advice in the framing of pending legislation, but 
did not share in its enactment. ^^ This seems to be an excellent 
arrangement, the judges performing those functions for which 

95 And see Hallam, Mid. Ages, III, p. 143. 
9«Stubbs, C. H., Ill, p. 395. 
97 Stubbs, C. H., Ill, pp. 445-6. 



26 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

they were best fitted, while the Lords passed upon the questions 
of pohcy involved. Before long the Commons were admitted 
to share in the work of legislation,^^ but this had no effect on 
the advisory position of the judges. 

During the seventeenth and eighteenth centuries they 
were consulted quite freely, especially on questions concerning 
pending legislation, or possible legislation. When the Commons 
in 1614 passed a declaration against the king's right to impose 
taxes at the outposts and asked the Lords for a conference 
on the subject, the Lords first requested the opinion of the 
judges on the subject of these impositions. The opinion was 
refused, but, as Hallam conjectures,^^ this may have been due 
to Coke's dislike for Egerton, L. C, who had moved to consult 
the judges. ^^^ On the other hand, the judges freely gave their 
opinions on the construction of pending bills on November 30, 
1621 (on the third reading of the Ordinance Act), on March 9, 
1623 (on the third reading of a Lord's Day Act), on March 10, 
1623 (after the passage of a defective bill by the Lords), on 
May 1, 1624 (on the Bill of Grace for Wales), on July 9, 1669 
(on the second reading of a bill for reversing a King's Bench 
judgment), on May 9th and 12th, 1690 (on the third reading 
of Commons amendments to a bill; here they suggested the 
insertion of certain words) on May 12, 1711 (on the second 
reading of a bill re Mandamus and Quo Warranto), on March 6, 
1717 (on the Forfeited Estates Bill), on December 22, 1718 
(on the Schism Act), on January 17, 1719 (on a Corporation 
Bill), on May 18, 1720 (an adverse opinion on an Insolvent 
Debtors Bill), and on April 29, 1723 (on a bill to inflict pains 
and penalities on John Plunket).^^^ In the case of the Schism 
Act, the Lords said it was ''usual to ask the Judges opinions of 

98 Stubbs, C. H., II, pp. 257 sqq. 

99 C. H., I, p. 340n. 

100 Lords' Journal, May 23, 1614. 

"1 Macqueen, House of Lords, pp. 53-57. 



HISTORY OF THE ADVISORY OPINION 27 

the consequences of repealing or making any law. "^'^^ What 
appears to be an opinion concerning possible legislation is the 
case in Michaelmas Vacation, 1721, when the House asked the 
judges whether the king could prohibit the building of war ships 
in his dominions; the judges were of opinion that he could not. 
"This question was asked on occasion of ships built and sold 
to the Czar, being complained of by the Minister of Sweden. "^°^ 
The only hint of a refusal to reply by the judges is the case in 
May, 1758, where Lord Chief Justice Willes told the House 
the judges were ready to answer nine of the ten questions sub- 
mitted, but asked to be excused from answering number 3 
(concerning the operation of a proposed bill and its effect upon 
the subject), in which request the House acquiesced.^°^ The 
House, it seems, was both considerate and careful in exercising 
the privilege of consultation. In the Schism Act case,^°^ the 
Lords opposed the second question as originally framed, as 
touching upon "what might judicially come in question in 
Westminster Hall," and the Lord Chancellor altered the ques- 
tion; and certain members of the House objected to the third 
question for a similar reason, and it was voted to withdraw it. 
Macqueen^^^ cites two cases (in 1783 and 1788) in which motions 
to refer questions to the judges were voted down. In at least 
one case, ^^^ the judges excused themselves from replying to a 
question, about a pending bill, "it being likely the case would 
come before them in the courts below." The House was not 
favorably impressed with this attitude, however, and the 
"matter of the Judges" was debated on an appointed day and 
its further consideration only prevented by a prorogation. 
In 1760, then, it is an unquestioned rule that the judges 
are to answer inquiries put to them concerning bills aheady 

102 Fortescue, 385. 

103 Fortescue, 388. 

104 Macqueen, House of Lords, p. 57. 

105 Uhi supra. 

106 House of Lords, p. 57. 

1°^ Macqueen, House of Lords, p. 52. 



28 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

introduced into the House of Lords, or in contemplation. 
There is a little authority for saying that they may refuse to 
pass on questions which will come before them in their judicial 
capacity. The House on the whole is sparing with its refer- 
ences, and usually follows the advice of the judges. 

New questions were raised in the nineteenth century. In 
1834, an application was made to Parliament for a bill to incor- 
porate a certain L. and W. B. Company. Such a bill passed 
the House of Commons and had come up for a second reading 
in the House of Lords, when it was moved that counsel be heard 
on the subject and that the judges be ordered to attend. A 
day was set and a question stated: "Are the provisions of this 
bill inconsistent with the Bank of England's rights as secured 
to it under the following acts" (naming seven statutes)? The 
judges attended, but after a short conference together, reported 
(through Tindal, C. J.) that "His Majesty's Judges, after con- 
sidering the question which has been proposed to them, find it 
proposed in terms which render it doubtful whether it is a ques- 
tion confined to the strict legal construction of existing Acts of 
Parliament; and they therefore, . . . request to be excused 
from giving an answer. "^°^ With due respect for the learned 
judges who shared in that opinion, it is submitted, on the facts 
disclosed above, that this position is untenable. The construc- 
tion of pending bills has been the most frequent practice of the 
judges as legislative advisers to the House of Lords. A more 
elaborate demurrer was advanced in McNaghten's Case 
(1843).^'^^ A verdict of Not Guilty had been returned to an 
indictment for murder, the defense being insanity; and the 
question of the extent of insanity that would be a good defense 
to such an indictment was made the subject of a debate in the 
House of Lords. They summoned the judges to attend on a 
given day, and put to them five questions on the existing law of 
insanity as a defense. Maule, J., objected to answering on 

"* In re London and Westminster Bank, 2 CI. and Fin. 191. 
'o» 10 CI. and Fin. 200. 



HISTORY or THE ADVISORY OPINION 29 

three grounds: (1) The generality of the questions, not referring 
to any particular case. (2) The lack of arguments by counsel. 
(3) The embarrassment that might be caused in the administra- 
tion of justice.^^^ However, since his brethren disagreed with 
him on this point, he submitted an answer in general terms. 
Tindal, C. J., and the other judges subscribed to the vaUdity 
of these objections, but thought an answer should be given. 
In commenting on the answers,^^^ the Lords with one voice 
asserted their undoubted right to require opinions on ab- 
stract questions of law; such questions are not mere matters 
of speculation, for the House of Lords may be called on to 
change the law. Lord Cottenham indulges in the dictum that 
opinions on a pending bill cannot be required, but he was im- 
doubtedly relying on In re London and Westminster Bank. 
Perhaps McNaghten's Case is the last instance of legislative 

^"The questions raised here are especially interesting in view of the 
principles developed by State courts in the United States — see later. Per- 
haps they are the result of American influence. 

"^ "Generally speaking, it is most important that in questions put for 
the consideration of the Judges, they should have all that assistance which 
is afforded to them by an argmnent by coimsel : but at the same time there 
can be no doubt of your Lordships' right to put . , . abstract questions of 
law to the Judges, the answer to which might be necessary to your Lord- 
ships in your legislative capacity." — ^per Lord Brougham. 

"It was most fit that the opinions of the Judges should be asked on 
these matters, the settling of which is not a mere matter of speculation; 
for your Lordships may be called on, in yoiu: legislative capacity, to change 
the law." — ^per Lord CampbeU. 

"It is true they cannot be required to say what woiild be the construc- 
tion of a BUI, not in existence as a law at the moment at which the question 
is put to them; but they may be called on to assist your Lordships, in de- 
claring their opinions upon abstract questions of existing law." — ^per Lord 
Cottenham. 

Lord Wynford also says that he never doubted the power of the Lords 
to ask opinions on questions of existing law, and that he gave such opinions 
himself when in the Common Pleas; and the Lord Chancellor agreed as to 
all these comments. 



30 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

consultation. Cases in the last century are rare.^^^ But the 
right to such consultation doubtless still exists.^^' At least 
the Judicial Committee thought so in 1912:^^"* "There is also 
authority for saying that the House of Lords possesses in its 
legislative capacity a right to ask the judges what the law is 
in order to better inform itself how, if at all, the law should be 
altered. The last instance of this being done occurred some 
fifty years ago,"^ when the right was expressly asserted by Lords 
of undoubtedly high authority. " 

B. In United States 
1. When Authorized by the Constitution 

a. Massachusetts. The advisory opinion was formally intro- 
duced into the American constitutional system by the Massachu- 
setts Constitutional Convention of 1780."^ Even before this 
time it is quite possible that irregular soHcitation of judicial 
advice was not unknown. ^^^ Perhaps, too, the early colonial 
practice of consulting the Pl3rmouth and Massachusetts Bay 
clergy may have helped to familiarize the people with the 
advisory system.^^^ Washburn tells us^^^ that formal appeals 

112 Cf. the opinion of the court in 126 Mass. 557; "The right of the 
House of Lords to put abstract questions of law to the judges, the answer 
to which might be necessary to the House in its legislative capacity, has 
been often acted on in modern times." 

"^Though Maitland apparently has forgotten it — C. H., p. 84. 

"* (1912) A. C. 571, at 585-6. 

"''This probably refers to McNaghten's Case. 

"^ For the text of the provision see Appendix I. 

"^ 'Tn Massachusetts, in colonial days, the governor and the council 
claimed and exercised the same prerogative (i.e., as the king and House of 
Lords in England) and the colonial judges seem to have acquiesced. " Emery, 
C. J., in 2 Maine Law Review, 1. 

"* I am indebted to Dr. C. K. Maxson of the University of Pennsyl- 
vania for this suggestion. *Tt was the custom of the General Court," he 
writes, "to refer questions of law to the preachers who wrote out learned 
opinions. Their citations were, of course, mostly from the Mosaic law and 
other parts of the Bible. You may see many illustrations of this custom in 
the Bradford history. The same custom obtained in Massachusetts Bay." 

"' Judicial History of Massachusetts, p. 21. 



HISTORY OF THE ADVISORY OPINION 31 

for advice were made to the clergy by magistrates "until 1682, 
when, for the last time, they were consulted in relation to the 
surrender of the charter (1 Hutch. 303, n.)." Unfortunately 
the only examples he gives are cases of volimtary interference 
and gratuitous advice from the preachers of the colony. But 
whether soHcited or not, such advice was doubtless very desir- 
able, for apparently no one connected with the court in those 
early days had had a legal education.^^^ Still the influence 
of this practice upon the introduction of the full-fledged ad- 
visory opinion in 1780 in all probability was relatively insigni- 
ficant. Under the Royal governors there certainly was no 
magisterial consultation of the clergy. Justice was almost 
entirely in the hands of the governor, and members of his council 
commonly acted in a judicial capacity.^^^ The judiciary was 
first clearly separated in theory from the executive and legis- 
lature in the charter of 1691;^^^ but even after this, the same 
person could be both judge and councilor at the same time.^^^ 
Executive consultation of such an ill-defined and immature 
judiciary passes almost unquestioned, as we saw in the case of 
England. So the seed of the advisory opinion in Massachusetts 
may have been sown both by ecclesiastical and governmental 
practice in the colony. 

However this may be, there can be little doubt that the 
Massachusetts advisory opinion owes its form at least to the 
influence of English practice. It bears many evidences of that 
influence. In the first place, the clause as first reported to the 
convention limited the consultative power to the governor and 
coimcil, and upper house, the counter-parts of the king and 
House of Lords, and the privilege was only extended to the 
house of representatives by amendment on the floor of the 

^"^^ Ibid., Chapters 1-5, passim. 
^^^IbU., Chapter 6. 
^ Ibid., p. 139. 
^ Ibid., p. 159. 



32 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

convention.^2^ Again, as has been observed already, the 
EngHsh judges were on record as objecting to the giving of 
opinions (at least in administrative matters) except in cases of 
manifest and urgent necessity ;^^ while Hargrave^^^ had stated 
that the right of extra-judicial interrogation was "3. right to 
be understood with many exceptions, and such as ought to be 
exercised with great reserve." Correspondingly, opinions of 
the Massachusetts justices can be required only '' upon important 
questions of law and upon solemn occasions." Note, too, that 
as there is no distinction between legislative and judicial ques- 
tions in England either in the case of the king or of the House 
of Lords, so there is no distinction here. Of course, the adop- 
tion of the principle of separation of powers left few judicial 
duties to either the governor or the legislature. 

These intrinsic evidences of EngUsh influence are corro- 
borated by the circumstances attending the formulation of 
this article of the constitution. In its original form it would 
seem to have been the work of John Adams. The convention 
chose a committee of thirty (or thirty-one?) to draft a con- 
stitution after general discussion from the floor. This com- 
mittee appointed a sub-committee of three — James Bowdoin, 
Samuel Adams and John Adams — and they in turn delegated 
the task of preparing the draft to John Adams.^^^ With the 
exception of a few minor alterations in committee, the consti- 
tution reported to the convention was his work. He frankly 
claims to be the drafter of the Massachusetts constitution of 
1780.^2^ The importance of his authorship, for the present 
purpose, is that he was a lawyer and well versed in English 

'^ See Jour, of Mass. Const. Conv. of 1779-80, pp. 211, 85-86. 

^^ Mansfield's Note in Lord Sackville's Case, 2 Eden, 371. 

^2« Co. Litt., 110. Hargr. n. 5. 

>"Jour. Mass. Const. Conv. 1779-80, pp. 28-30; Adams' Works, IV, 
pp. 215-216. 

128 Walsh, Political Science of John Adams, p. 7n; and see Adams' 
Works IV, pp. 185-187, 193-200, 203-209 and 219-267; also his correspon- 
dence of this period in Vol. IX of his Works. 



HISTORY OF THE ADVISORY OPINION 33 

judicial practice.^^^ In his discussion with General Brattle 
concerning the Independence of the Judiciary, he mentions 
a secret consultation of the judges by the king in Sir Edward 
Hale's case.^^*^ As his grandson says, "his education, his 
professional studies, and his habits of generalization led him 
to favor the main features of the British form of government. "^^^ 
When we couple these facts with the pecuharly EngHsh touches 
of the article, as pointed out above, we may fairly conclude 
that John Adams fathered the advisory opinion in the Mas- 
sachusetts constitution, and that it was a deUberate formula- 
tion of the existing EngHsh practice as he understood it. 

It may be thought queer that the advisory opinion clause 
should be adopted by a convention so dominated by the theory 
of Montesquieu. Probably there was no intention to interfere 
with the independence of the judiciary ;^^2 i]^q framers of the 
clause aimed merely at securing coordination between the 
departments of government, and promoting a uniformity of 
interpretation that would make for greater justice and effi- 
ciency.^^ Certainly, as will be seen, the device in operation 
has not impaired the independence of the judiciary to any 
appreciable extent. Whether it affects the independence of 
the other departments is a question that will be discussed later. 

The first opinion under the advisory opinion clause was 
given in 1781, at the joint request of the senate and house of 
representatives.^^^ The judges expressed themselves as being 
honored by the reference, and their advice was followed by 

^2^ Adams' Works, III, pp. 519 sqq., and passim. 

^'UUd., Ill, pp. 529-530. 

^^^ Life of John Adams by Charles Francis Adams in Adams' Works, I, 
at p. 287. 

^^- See The Duty of Judges as Constitutional Ad\'isers, by H. A. Du- 
buque, in Am. L. Rev. XXIV, 369, at p. 374. 

^^ Note that John Adams himself was a strong advocate of the separa- 
tion of powers. See his Works, passim, and Walsh's Pohtical Science of 
John Adams, pp. 20 sqq. 

^^* Opin. of Justices, 126 Mass. 547. 



34 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

the houses in their subsequent action. In 1784 a question was 
put by the senate as to whether the legislature had a consti- 
tutional right to fill vacancies in the council, and the judges 
made a brief reply. ^^^ The next case (1787) of which I have 
found any record was a reference by the legislature of a memorial 
from the French consul; the judges, ^'for substantial reasons," 
decUned giving an extra-judicial opinion. The same ye3,r, 
an opinion was given to the senate as to the legislature's power 
to commute punishment.^^^ In 1791, the senate submitted 
several questions concerning the passage of bills, and in 1807 
the governor referred a question on elections.^" These six 
were the only cases under the clause before 1810. Only eleven 
in all are reported from 1780 to 1830. Since that time opinions 
have been requested with increasing frequency. The total 
number to December 1, 1917, is one hundred and five. Of 
these the house and senate jointly are responsible for ten, the 
house alone for forty, the senate alone for twenty-three, the 
governor and council for twenty-four, the governor alone for 
six, and the council alone for two. 

Apparently the judges and reporters did not attach much 
importance to the early opinions. In no case do they appear 
in their proper chronological place in the reports. The 1781 
case was not incorporated therein till 1879.^^^ Two cases (1791 
and 1807) were transferred from the newspapers to 3 Massachu- 
setts 567, 568, in 1807.139 The 1784 case and one of the 1787 

i^Opin. of Justices, 14 Mass. 470. 

136 Opin. of Justices, 14 Mass. 472. 

"^ Opin.s of Justices, 3 Mass. 567, 568. 

13* Opin. of Justices, 126 Mass. 547. 

139 An explanatory note by the reporter says: "The two following 
documents containing the solemn opinion of the court upon questions 
duly submitted to their consideration, pursuant to the constitution, chapter 
3, article 2, it was though expedient to transfer them from the newspapers, 
in which they were published, into the Reports, that a more easy and general 
access may be had to them, should any future discussions arise on the same 
subjects." 



HISTORY OF THE ADVISORY OPINION 35 

cases were included in 14 Massachusetts in 1817; the other 1787 
case is not yet on the official records. Even very much later 
opinions are not in their proper order. One of 1825 is reported 
in 1829,140 one of 1840 in 1849/41 one of 1833 in 1850/42 one of 
1837 in 1861,143 ^nd one of 1839 in 1850.144 

Yet in spite of this apparent neglect and the infrequent 
apphcation of the clause there was a strong feehng in the con- 
vention, of 1820 that it should be repealed. Among the dele- 
gates of this convention were many prominent members of 
the bench and bar — Parker, who was chief justice 1814-30; 
Jackson, who was justice 1813-23; Shaw, who was to be chief 
justice from 1830 to 1860; Lincoln, who became justice in 1824; 
Story, a justice of the United States Supreme Court; Daniel 
Webster; and John Adams, who is reported to have drafted 
the constitution of 1780. The committee on the judiciary, 
through its chairman, Mr. Justice Story, reported a recom- 
mendation that the advisory opinion scheme be dropped.i45 
In arguing for the recommendation, Story emphasized the im- 
portance that the judiciary should be independent, and the 
great danger that they would have to give opinions in cases 
" exclusively of a political character. " Furthermore the scheme 
deprived individuals of the right of being heard and of the 
right of trial by jury. In times of political excitement the 
judges might be consulted when it was certain their opinions 
would not suit the popular sentiment and "with the very view 
to make them odious and to effect their removal from office.i4^ 

"0 Opin. of Justices, 7 Pick. 125, 130n. 

"1 Opin. of Justices, 3 Cush. 584. 

^*2 Opin. of Justices, 6 Cush, 573. 

^« Opin. of Justices, 1 Allen 197n. 

"* Opin. of Justices, 6 Cush. 575. 

i«Deb. Mass. Conv. 1820, 489-90. 

"^ Probably he is referring to the opinion in 8 Mass. 548, of which ex- 
Justice Morton said, in 1853: "When the war of 1812 was in progress, a 
question arose which agitated the whole community, a question about 
which there was more excitement than there ever had been before, or vsill 



36 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

Also, "as the constitution now stands, the judges are bound 
to give their opinions if insisted upon, even in a case where 
private rights are involved, and without the advantage of an 
argument." He indicated that the recommendation was 
practically unanimous, and, without further debate, it was agreed 
to in the convention ''by a large majority." The saUent parts 
of Story's argument were incorporated in an Address to the 
People^^^ which accompanied the proposed amendment. Un- 
fortunately we are unable to know the sentiment of the people 
of Massachusetts as to the advisory opinion at that time, for 
the suggested repeal was combined with a provision that all 
judicial officers may be removed by the governor with consent 
of council upon the address of a majority of each house of the 
legislature, after notice to the person concerned (a provision 
that was debated at great length and met with much opposition 
in the convention), the two provisions making up Amendment 
IX. The vote on this amendment was 12,471 pro, 14,518 
contra."^ 

The attempt at repeal was repeated in the Convention of 
1853, and apparently again at the instigation of the legal pro- 
be likely to exist for half a century to come; the question in relation to calling 
out the militia was got before the supreme court in some manner, I do not 
recollect how, and they gave an opinion which produced an immense ex- 
citement in the community, and which was arraigned throughout this state, 
and throughout the United States, which opinion was reversed by the whole 
court of the United States, and which opinion would have destroyed the 
utility and confidence in this court in this Commonwealth, had it not been 
founded upon a basis which coxAd not be shaken, and had it not been sup- 
ported by a law-loving community." Deb. Mass. Conv. 1853, II, 694. 

"7 Deb. Mass. Conv. 1820, 629. 

"8 ibid.^ 633. Jameson (Constitutional Conventions, p. 669) com- 
ments: "In Massachusetts, therefore, a proposition which received the 
approval of the leading lawyers and judges of the Convention, of all parties, 
and which involved simply a legal or constitutional question, was voted 
down by a majority consisting largely of farmers, mechanics, and trades- 
men." But Jameson overlooks the possible efifect of the second proposed 
change in defeating the whole amendment. 



HISTORY OF THE ADVISORY OPINION 37 

fession. Marcus Morton, Jr., (who was elevated to the Supreme 
Bench in 1869) introduced an order that the committee on 
the judiciary inquire into the expediency of retaining the 
advisory opinion clause.^^^ This committee was composed of 
Marcus Morton, St., who had been a justice of the Supreme 
Court 1825-39; Greenleaf, the official reporter in Maine 1820- 
32; Lord, a Supreme Court justice 1859-75; Chapin, a lawyer, 
who became probate judge in 1858; Choate, a lawyer; and eight 
members of unknown qualifications.^^*^ The chairman (Mar- 
cus Morton, Sr.) reported a recommendation that the gover- 
nor and legislature should not have the right to require 
opinions of the judges.^^^ In opening the debate he emphasized 
the separation of powers principle, the importance of keeping 
the judiciary out of the ''vortex of politics," and the ex parte 
character of opinions involving private rights. ^^^ Mr. Lord 
added that the clause permitted "the legislative or executive 
department of the government to put, in many important in- 
stances, the whole responsibihty of their action upon the judicial 
department" and besides "it is very httle different from per- 
mitting the judiciary to control the legislative and executive 
powers. "^^^ In reply, statements were made by Mr. Warner, 
Mr. Hooper and Mr. French that the scheme had worked well 
in practice, that no evil had resulted, that it secured a desirable 
uniformity of action in questions under the constitution and that 
" the supreme court of the State can render no better service to 
the Commonwealth than in answering such questions as may 
be propounded to them by the legislature."^^ The recom- 
mendation came from a unanimous committee and was adopted 
by the convention after a short debate. The sentiment of 

"9 Deb. Mass. Conv. 1853, I, 160. 

^^°Ibid., I, 89, and Appleton's Cyc. of .\iner. Biog. sub nom. 

1" Ibid., I, 447. 

''Ubid., II, 685. 

"3 76- J., II, 687. 

''*Ibid., II, 686. 



38 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

the people is again unascertainable, however, for the repeal 
was only one of many changes in the revised constitution, 
which was rejected, 63,222 to 68,150.^^ Probably it was not 
considered a point of great importance, for it is not discussed 
at all in a pamphlet "On the Proposed Constitution 1853" 
by G. T. Curtis, Samuel Hoar, Marcus Morton, C. F. Adams 
and others. 

The advisory opinion has now become an unquestioned 
fixture in the Massachusetts system. There is no disposition on 
the part of the governor or legislature to forego the advantages 
of its use. Since 1890, fifty-one such opinions have been reported 
— twenty-nine of them since January 1, 1910. Certain well- 
defined rules of construction and appHcation have been worked 
out, some of them limiting the clause in important particulars; 
most of this elaboration belongs to the period since 1877, when 
the justices, in an opinion of almost revolutionary character, 
asserted a claim to considerable discretion in refusing their 
advice.-^^^ Several principles regarding the juridical nature 
of advisory opinions have been clearly enunciated. These 
will be disclosed in the detailed analysis to follow. 

As to the effect of the scheme in Massachusetts, I can not 
do better than quote from a recent book from the pen of a 
Massachusetts writer: "The system of advisory opinions has 
also worked well. The Massachusetts supreme court vetoes 
fewer legislative enactments than the supreme court of any 
other of the larger states. This relatively infrequent use of 
the judicial veto may be partly explained by the absence of 
most of the constitutional limitations upon legislative powers 
and procedure which abound in the constitutions of many 
states. But it is to no inconsiderable degree the result of the 
legislative and executive practice of calling upon the supreme 
court for their opinion concerning the constitutionaUty of 
proposed measures, when their constitutionaUty is questionable, 

»« Ibid., Ill, 768. 

i«> Opin. of Justices, 122 Mass. 600. See pp. 167-70 infra. 



HISTORY OF THE ADVISORY OPINION 39 

in advance of their enactment into law. Often there are several 
such requests for advisory opinions in the course of a single 
legislative session. The opinion of the court is invariably 
accepted. When the opinion is adverse to the constitutionaUty 
of a proposed measure, the legislature may, if it chooses, pro- 
ceed thereafter by means of a constitutional amendment. This 
has been done in several cases. More frequently the measure 
is dropped. "^^^ 

b. New Hampshire. New Hampshire evidently borrowed 
the clause from Massachusetts, for the text in the constitu- 
tion of 1784^^^ follows the wording of the constitution of the 
latter state, except that "governor" is replaced by "president" 
and "supreme judicial court" by "superior court." The 
clause is repeated in the constitution of 1792, the word "gover- 
nor" now being used, and this wording is unchanged in the con- 
stitution of 1902. 

No trace of an appUcation of the scheme is discoverable 
before 1816, when the governor and council appealed to the 
justices to determine the constitutionality of the legislation 
amending the Dartmouth College charter, and the power of 
the governor and council under such legislation. A reply to 
the first question was refused on the ground that it affected 
private rights which might later come before the court in a 
regular action. As was the case in Massachusetts, this opinion 
was not reported until much later.^^^ Only four opinions 
are recorded as given before 1850 and but nine more from 
1850 to 1870. The total to December 1, 1917 is forty-nine. 
Of these, twenty were in response to interrogations from the 
house, nine were given at the request of the senate, eighteen 

i"Holcombe, State Govt., p. 381. 

^5* For the text of the provision see Appendix I. 

1*9 Opin. of the Court, 62 N. H. 704, (1882). Three other opinions are 
not in chronological order: one of 1865 was reported only in 1874 (Opin. 
of Justices, 53 N. H. 634); one of 1877 in 1882 (Opin. of Justices, 62 N. H. 
706); and one of 1889 in 1912 (Opin. of Justices, 76 N. H. 612). 



40 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

at the request of the governor and council, and two at the re- 
quest of the governor alone. 

The interpretation and appHcation of the clause have dif- 
fered from the Massachusetts practice only in that the judges 
have been more generous in exercising the discretion claimed 
for them, as will be seen later. The writer has been unable 
to ascertain the effect of opinions in determining the action 
of the executive and legislative departments, but the inclusion 
of the clause in the constitution of 1902 would go far to indicate 
a general satisfaction with its operation in the past; for in 
general, the judiciary committees of constitutional conventions, 
composed mostly of legally trained men, oppose the practice 
as contrary to certain traditional theories of law and the judicial 
function. This has been illustrated in the conventions of 1820 
and 1853 in Massachusetts, and will be further exemplified 
in other cases. 

c. Maine. The next State to adopt the advisory opinion 
was Maine, in the constitution framed upon its separation 
from Massachusetts in 1820.^^^ The influence of the consti- 
tution of the older State would naturally be an important 
factor in determining the content of this new charter of govern- 
ment. But it is interesting to observe that the new State 
made the clause part of its constitutional system the very year 
when a convention in the parent State was urging that it be elim- 
inated from theirs. The wording has been modified slightly 
however. One change should be noted. The Massachusetts 
clause gives the power of consultation to ''each branch of the 
legislature, as well as the governor and council." The gover- 
nor alone had exercised the power in 1807,^^^ and several other 
replies were given, either to the governor or to the council,^^^ 
before the justices expressed a doubt as to whether the consti- 

^'° For the text of the provision see Appendix I. 
"1 Opin. of Justices, 3 Mass. 568. 

"2 In re Opin. of the Justices, 211 Mass. 620, and In re Opin. of the 
Justices, 211 Mass. 630. 



HISTORY or THE ADVISORY OPINION 41 

tution authorized such repHes, a doubt resolved against the 
governor in 1913.^^ Under the Maine constitution this ques- 
tion cannot arise, for authorized requests may come from "the 
governor, council, senate or house of representatives." The 
clause, as reported from the committee, was adopted unani- 
mously by the convention. ^^ 

The executive and legislative departments were not slow 
to avail themselves of the advantages of judicial advice. The 
first opinion was given in 1821, and twelve are on record before 
1840. The use of the scheme has been steady, though not 
very frequent, and the cases are well scattered. During the 
ninety-seven years of its operation, fifty-six opinions in all have 
been reported. These are distributed among the different 
interrogators as follows: house, sixteen; senate, eleven; gover- 
nor, seventeen; council, seven; governor and council jointly, 
five. They have been reported with reasonable promptness, 
though the opinions in 3 Maine, 477, and 3 Maine, 481, are of 
earlier date than the opinion in 2 Maine, 439.^^^ 

No information is available as to the success or failure of 
the device in Maine, but the writer is not aware of any attempt 
to do away with it. The judges have seemed favorably dis- 
posed to it and there are very few refusals to answer, as com- 
pared with other States. The interpretation of the clause has 
been similar to that of Massachusetts and New Hampshire, 
with the exception of the doctrine of 70 Maine, 570, which can 
better be considered at another place. 

d. Rhode Island. When Rhode Island tardily substituted 
for her charter of 1663 a constitution (in 1842) of more modern 
content, she was suf&ciently impressed by the advisory opinion 
scheme of her New England neighbors, ^^^ to borrow it for her 

"3 In re Opin. of the Justices, 214 Mass. 602. 

"" Debates, etc. of Conv. of 1819, Perley, p. 175. 

^^ Also an opinion of 1871 — Opin.s of the Justices of the Supreme 
Judicial Court, 64 Me. 588 — was accidentally overlooked until 1875. 

"* Thayer (Cases on Constitutional Law, I, p. 183 n.) thinks it quite 
possible that the judges in Rhode Island at least gave extra-judicial advace 



42 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

own use.^*"^ But important changes appear in the version of 
this State. No council was created by the new constitution, 
so the power of consultation rests in the governor or either 
house of the general assembly. But the ''important question 
and solemn occasion" qualification has disappeared; the judges 
are to give their opinion upon "any question of law." The 
importance of this change may be seen from the fact that, 
though references on rather trivial and unnecessary points 
have not been lacking, there is no record of a refusal to give 
an opinion requested. The desirability of so comprehensive 
a requirement may well be questioned (see Chap. III). Also, 
the constitution explicitly states that the opinion must be in 
writing. This is probably a cautious superfluity, for the exist- 
ing practice was to give written opinions, however brief, and 
there is no reason to suppose that the careful lawyers who at- 
tain the highest judicial honors in our State's would be inclined 
to do otherwise. 

No opinions were requested for twelve years, as far as the 
records disclose, the first one being Opinion of the Supreme 
Court, 3 Rhode Island, 299. The forty-six cases in the reports 
are well distributed from 1854 to date, except for a gap from 1858 
to 1877. They are reported promptly, with one exception.^^^ 
The legislative department seemingly has not taken much inter- 
est in the scheme — one request has come from the general 
assembly, three from the house and nine from the senate, the 
governor being responsible for the other thirty-three. The 
cases are of a humdrum type, and the opinions commendably 
brief but monotonously uninteresting. The justices have 

in colonial times, inferring this from the statement of Howell, J. in Trevett 
V. Weeden, Thayer, Cases, I, p. 73: "The court was ever ready, as consti- 
tuting the legal counsellors of the State, to render every kind of assistance 
to the legislative, in framing new or repealing former laws." 

•'^ For the text of the provision sec Appendix I. 

"* In re Election of School Committee, 28 R. I. 629. Also the arrange- 
ment of the opinions in 4 R. I. is not chronological. 



HISTORY OF THE ADVISORY OPINION 43 

accepted the clause as it stands, and anyone is free to indulge 
in its interpretation without reference to judicial precedent. 
The opinions are void of any contributions to the theory of the 
judiciary department in the American system. Perhaps this 
is the inevitable result of a clause as broad as this one is; perhaps 
it testifies to a more generous cooperation of the judges with 
the other departments. In any case, it seems to be the opinion 
in Rhode Island that the scheme is a success, for the advisory 
opinion was reaffirmed in a judicial amendment (Amendment 
XII, Section 2) which was adopted November 3, 1903.^^^ 

e. Missouri. Heretofore the advisory opinion has been 
confined to the New England States. The historical explana- 
tion of its long leap to the Mississippi VaUey is wanting. Possi- 
bly it was due to the efforts of lawyers or others who had been 
brought up in the original habitats of the device, and later turned 
their faces westward. This first transplanting was an unsuc- 
cessful experiment, for environment and culture were both 
adverse. An adequate conception of the origin, history and 
purpose of extra-judicial consultation was lacking and the 
deficiency foredoomed failure. 

The clause in question was incorporated into the constitu- 
tion in 1865.^'''^ Two new elements were introduced. Opinions 
must be given only upon ''important questions of constitutional 
lav/, and upon solemn occasions." The effect of this change 
must not be over-estimated. Most questions of statutory 
law, if "important," could be brought within the "solemn 
occasion" provision, if the latter were not too strictly con- 
strued. Quite likely the chief intention of the framers of this 
clause was to provide a means for the judges to pass upon the 
constitutionality of measures before, instead of after, enactment. 
The other new element is a direction that all opinions given un- 
der the clause "shall be pubhshed in connection with the re- 
ported decisions of said court. " Probably this was unnecessary 

i«9 Thorpe \T, p. 3240. 

^^° For the text of the provision see Appendix I. 



44 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

in the light of modern practice, but it is worth while to make 
that practice certain on this point. If such opinions are to be 
given and are to be the basis of legislative or executive action 
in many cases of a difficult nature, it is by all means desirable 
that the public should have the means of knowing their con- 
tent. It is important that succeeding legislatures and execu- 
tives should know that certain measures are inacceptable and 
why, that certain policies of their predecessors were determined 
by constitutional considerations which will probably continue 
to influence the judicial department. It is important that the 
judges themselves and the legal profession should be able to 
ascertain how great constitutional jurists have dealt with 
problems, even though their consideration has been extra- 
judicial and is not binding upon the courts. 

The first request^^^ under the clause came from the governor 
on November 27, 1865, and was answered very concisely with- 
out comment. The second^^^ ^^^s from the senate, on Decem- 
ber 9, 1865, and, though in more general terms, did not differ 
essentially in nature from the previous request; both asked 
for opinions as to the power of the legislature to pass certain 
acts, and as to the construction of a constitutional clause. The 
judges refused to reply and proceeded to give a detailed inter- 
pretation of the advisory opinion provision. After declaring 
that the judges must determine what are "questions of con- 
stitutional law" and what are "solemn occasions," they con- 
strue the clause as if these two requirements must concur in 
order to bring the question within the section. A question 
must be "a question of law only, and it must arise upon the 
Constitution alone. It can scarcely be any other than some 
question of the proper construction and true meaning of some 
provision, clause, or words, contained in the Constitution; 
and it must be in its own nature, a judicial question, the final 

"^ Advisory Constitutional Opin. of the Judges, 37 Mo. 129. 
"* Advisory Constitutional Opin. of the Judges, 37 Mo. 135. 



HISTORY or THE ADVISORY OPIOTON 45 

determination of which, by the organic frame of our Govern- 
ment, properly belongs to the Judiciary. . . . Such questions 
should be important in reference to the pubhc interest, and 
the necessary and immediate action of the Legislative or Exec- 
utive branch of the Government, upon some matter of unusual 
magnitude and solemn concern for the public good." The 
judges' right to decide whether a request was within the section 
seems to have been exercised very whimsically, for the next 
three cases^^^ scarcely stand the tests suggested above; yet 
answers were given. But in 51 Missouri, 586 (a case which is 
with difficulty distinguishable from that in 37 Missouri, 139) 
a reply was refused and the above principles reaffirmed.^^^ 
Two opinions follow^^^ in which the questions again fail to 
measure up to the standards set in 37 Missouri, 135, but proved 
acceptable. Then in 1874 the judges once more refuse to give 
their opinions, in the one case (with some reason) to the house 
of representatives,^^^ in the other to the governor.^^^ In the 
latter case still another criterion is suggested — questions must 
not relate to the constitutionaHty of an act already on the 
statute books. Such questions had already been answered in 
two cases.^^^ 

The house of representatives was the source of two references 
to the judges, the senate three, and the governor five. Of 
these ten requests, four were denied an opinion. Under these 

^^3 Advisory Constitutional Opin. of the Judges, 37 Mo. 139. Opinion 
of Court in Response to Governor, 43 Mo. 351. Opinion of Court in Re- 
sponse to Governor, 49 Mo. 216. 

"^ See criticism of H. A. Dubuque in Am. L. R. XXIV, pp. 389-90. 

"^ Opin. of Supreme Court Judges on To^vnship Organization Law, 
55 Mo. 295 (this case is not reported in chronological order); Opin. of the 
Judges in Response to a Resolution of the Senate, 55 jSIo. 215. 

^^^ Opin. of the Court in Response to the Resolution of the General 
Assembly, 55 Mo. 497. 

"7 In the Matter of Inquiries Submitted by His Excellency, 58 Mo. 369. 

"* Advisory Constitutional Opin. of the Judges, 37 Mo. 139; Opin. of 
Supreme Court Judges on Township Organization Law, 55 Mo. 295. 



46 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

circumstances/'^ it is no wonder that the clause was omitted 
from the constitution of 1875. It had been rendered ineffective 
by narrow judicial construction, and could be expected to be 
of little use while under the ban of judicial disapproval and 
the disadvantage of judicial misunderstanding. In 12 Colorado, 
466, and again in 3 South Dakota, 548, the statement is made 
that Missouri "profited by her experience" and excluded the 
advisory opinion in 1875. This gives a false impression as 
to the character of the advisory opinion. It implies that the 
people of Missouri gave it a fair trial and found it undesirable. 
This is not true. It did not have a fair trial in Missouri, first 
because of the unfortunate interpolation of the word ''consti- 
tutional," and secondly because the judges were not famihar 
with its history, did not appreciate its usefulness, and main- 
tained an attitude of hostility throughout. 

f. Florida. The next appearance of the advisory opinion 
was in territory equally remote from New England, and proba- 
bly unaffected by the example of Missouri. It would be inter- 
esting to know how such a heterogeneous assemblage as the 
convention of 1868 happened to include so unusual a provision 
in their proposed constitution. Very probably the peculiar 
form of the clause^^^ was due to special Reconstruction con- 
ditions. The governor alone is permitted to interrogate 
the justices. Possibly the idea was to promote cooperation 
between the executive and judiciary, and facilitate their union 
against a legislature that promised to be both incompetent 
and untrustworthy; possibly there existed an apprehension 
that if they attempted to succor that incompetence by permit- 
ting legislative consultation the popular organ of government 
might pervert the privilege, to oppress or gain control of the 
judiciary. The section is very broad in other respects, permit- 
ting questions "at any time ... as to the interpretation 
of any portion of this constitution, or upon any point of law." 

179 Q[ Thayer, Legal Essays, p. 58. 

^*° For the text of the provision see Appendix I. 



HISTORY OF THE ADVISORY OPINION 47 

As in Rhode Island, the opmion must be given in writing. 
Very difiScult questions were put to the justices from the 
start. On October 14, 1868,^^^ an opinion was requested as to 
the ehgibihty of former members of the Secession Convention 
to hold pubhc office under the existing constitution. In Novem- 
ber of the same year an extraordinary session of the legislature 
went through the form of impeaching the governor, and the 
latter promptly asked the justices if the proceedings were 
vahd.^^^ Here, as was pointed out in the opinion, the justices 
practically had to decide who was acting governor of the State, 
for if the proceedings were vaHd, the interrogator was not en- 
titled to an answer under the constitution.^^ The possibihty 
of indirect judicial consultation by the legislature came to 
light in January, 1869, when the governor, at the request of the 
legislature, asked an opinion as to the legality of the recent 
election of a United States senator; the judges protested that 
this was not a matter of judicial cognizance, but felt bound 
under the constitution, to give the opinion required.^^ Nine 
more questions were referred to the judges during the next 
four years, one of them^^ again at the instigation of the legisla- 
ture. Apparently it had become obvious that the form of 
the clause was too liberal, for it was materially changed by 
Amendment XI of 1875,^^^ which limited requests by the gover- 
nor to questions ''as to the interpretation of any portion of 
this constitution upon any question affecting his executive 
powers and duties. "^^^ At once the tide was checked. There 
are two constitutional questions in 1875 and another in 1877; 
then there is a gap of ten years. No more questions originating 

^^^In the Matter of the Executive Commmiication, 12 Fla. 651. 
^*2 In the Matter of the Executive Communication, 12 Fla. 653. 
^^^ See Baldwin, Amer. Judiciary, p. 49. 

^®^ In the Matter of the Executive Communication, 12 Fla. 686. 
^*5 In the Matter of the Executive Communication, 14 Fla. 320. 
^8^ For the text see Appendix I. 

^*^ This wording is continued in the constitution of 1885. See Appen- 
dix I. 



48 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

with the legislature are found in the reports. With the re- 
sumption of interrogatories in 1887, the judges promptly availed 
themselves of the restrictions imposed in 1875, and since that 
time have refused to answer in nine different cases, on each 
occasion demurring that the question was not one involving 
the powers or duties of the executive under the constitution. 
The test estabhshed is reasonably clear, but the judges have 
not been consistent in applying it;^^^ furthermore they have 
construed the provision with unnecessary strictness, thereby 
reducing the value of judicial aid to the executive to a mini- 
mum. Most of the questions to which a reply can be expected, 
as the clause is interpreted, could as well be answered by the 
attorney-general or some other legal adviser. It is practically 
impossible to get an opinion as to the constitutionaUty of a 
statute, but perhaps this is not undesirable, as long as it is not 
available to the legislature before a bill has become law. 

Florida's contribution to the law or theory of the advisory 
opinion has been small, because of the limited scope of the 
clause, the close and unsympathetic construction placed upon 
it, the sameness of the questions submitted and the brevity 
of the repHes. Perhaps the privilege has been a source of satis- 
faction to the governor occasionally, but it is hard to see why 
the legislature has not proposed an amendment which would 
extend the same favors to them. The people were evidently 
content with the scheme when they framed and adopted the 
new constitution of 1885; still it may be observed that the 
clause had not been used for eight years, and that refusals to 
answer were as yet unknown. 

g. Colorado. There is strong evidence that the advisory 
opinion found its way into the constitutional system of the 
Centennial State, not as an experiment but as a remedy for 
existing ills. It does not appear in the constitution of 1876, 

^** Cf. In re Executive Communication Concerning Powers of Legisla- 
ture, 23 Fla. 297, and In re Advisory Opinion, 43 Fla. 305. 



HISTORY OF THE ADVISORY OPINION 49 

but was adopted as an amendment ten years later.^^^ In 
1889, Chief Justice Helm sketched the historical setting in 
the following words: "The successive legislatures meeting 
after the admission of Colorado to statehood encountered 
great difficulty in the enactment of laws on account of numerous 
wise but troublesome hmitations contained in the constitution. 
Perplexity and confusion arose in consequence of legislation 
which this court was ultimately compelled to hold invahd. It 
was deemed expedient that each house should have the privilege 
of submitting questions, so that the injurious consequences 
arising from unconstitutional legislation might be avoided 
by having the vaHdity of proposed legislative acts thus deter- 
mined in advance. "^^° A similar picture is revealed in the 
advice of Governor Eaton to the first legislature assembHng 
after the adoption of the amendment: "I cannot forbear to 
direct your attention once more to the damage that has been 
done the State by the enactment of laws that have proved to 
be unconstitutional. It is a serious matter, for it breaks down 
public confidence in the wisdom of the Legislature. It is an 
error easily avoided. The Constitution had this source of 
danger in view when it provided that on grave occasions the 
Supreme Court shaU give its opinion to the General Assembly 
on the legahty of any legislation contemplated. The long 
fist of laws that conflict with the Constitution are a significant 
comment of this question. It seems to me that any occasion 
where there is the least doubt, is grave enough to warrant 
vour honorable body in seeking the advice of the court. It 
would save the people great expense and confusion if you 
would habitually do so."^^^ And corroborating this explanation 
is the fact that the first fifteen references (except two on the 
procedure of legislative enactment) were questions as to the 
constitutionahty of pending or possible bills. This contempor- 

^*^ For the text of the provision see Appendix I. 

190 In the Matter of the Constitutionahty of SB. No. 65, 12 Colo. 466. 

1" Message of Jan. 7, 1887. SJ. 1887, 126. 



50 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

aneous construction of the legislature is an important indication 
of the purpose and meaning of the amendment.^^^ Mr. O. F. 
A. Greene.^^^ a member of the legislature that proposed the 
amendment, testified to the same effect: ''The legislative mind 
had neither a negative nor an affirmative purpose in regard 
to the value of such opinions as general judicial precedents. 
So far as evidence goes, both from word and act, the Legislature 
was confined solely to the purpose of avoiding breakers as to 
its own acts."^^^ True, in a later passage of the same letter^^^ 
he minimizes preceding legislative troubles, but the purpose 
of the legislators in proposing the amendment is the point in 
which we are interested, and not the accuracy of Chief Justice 
Helm's representations as to the extent of judicial repeal from 
1876 to 1886. 

The advisory opinion clause was one of several changes in 
the judicial article of the constitution proposed in SB. No. 87, 
which was introduced by Senator James M. Freeman, on 
January 20, 1885.^^^ The bill was referred to the committee 

"2 In the' Matter of the Constitutionality of SB. No. 65, 12 Colo. 466, 
at p. 471. 

^^3 Mr. Greene began the practice of law in 1871, was elected represen- 
tative to the Colorado legislature in 1881 and 1883, and a senator in 1885, 
He was chairman of the judiciary committees of both house and senate hi 
turn, and was a member of that committee in the senate when the proposed 
amendment was referred to it. He was the author of a Digest of Supreme 
Court Decisions (Colo.) and occupied the chair of Roman Law in the State 
University. 

^^* From a letter to The Nation on Jan. 2, 1890, Vol. 50, p. 50. 

"5 "I think no instance can be found in which a competent legislator 
has been seriously troubled (by constitutional limitations). The difficulty 
in the way of needed legislation has been the incorrigibility of the personnel 
of the Legislatures. Instances of enactments pronounced void or inopera- 
tive on constitutional grounds are not so nimierous as might be inferred 
from the words of the Judge; and the cause of any such is usually traceable 
to the stupidity of its framers. " Ibid. 

I'OSJ. 1885, 176. 



HISTORY OF THE ADVISORY OPINION 51 

on the judiciary^^^ which redrafted and reported it, on February 
23, without the advisory opinion clause. But this was restored 
in committee of the whole (March 4th) .^^^ The bill was passed 
upon March 9th, all the members of the judiciary committee 
voting for it, except Senator Chilcott. Amendments from 
the house compelled it to run the gauntlet of a conference 
committee, and final passage only took place on April 6th.^^^ 
The governor promptly approved on April Tth.^o*^ In consider- 
ing the httle opposition the measure met in the legislature and 
the apparent approval of the legal Ughts therein, it must be 
remembered that the bill contained six other proposed amend- 
ments, some of considerable importance.^^^ But the act also 
provided that voters could designate by number those changes 
which they wished to approve. The advisory opinion amend- 
ment was adopted on November 2, 1886, by a vote of 16,858 
to 9,453.202 

The wording of the clause calls for very careful considera- 
tion.203 First of all it is the "Supreme Court" and not the 
justices that is to give the opinion. The change may have 
been fortuitous and without any special meaning2o^ but it did 
not pass unnoticed. In the opinion akeady referred to,2°^ 
Helm, C. J., makes this difference in wording together with 
the required pubhcity of opinions, the basis of his conclusion 
that the opinions "have all the force and effect of judicial pre- 

"^ A. M. Stevenson, O. F. A. Greene, J. M. Freeman, Mason B. Car- 
penter, George M. Chilcott, Frank Tilford, A. J. Rising, C. C. Parsons, 
and B. H. Butcher. 

"8 Greene says by "a hasty amendment." The Nation, ubi supra. 

199 SJ. 1885, 1738. 

200 Sess. L. 1885, 145-7. 

^''i The disappearance of the advisory opinion in the judiciary committee 
and Greene's criticism in The Nation, already referred to, indicate the usual 
disapproval of the profession. 

202 Sess. L., 1887, 483; and MiU's Annot. Stat. Colo. I, 258. 

203 For the text of the provision see Appendix I. 
20* O. F. A. Greene in The Nation, ubi supra. 

205 In the Matter of the ConstitutionaUty of SB. No. 65, 12 Colo. 466. 



52 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

cedents." The correctness of his position will be examined 
later, but to say the least the phrase in question was carelessly 
employed if the intention was to estabHsh a purely extra- 
judicial practice. Hayt, C. J., reiterated the same argument 
in a later case,^°^ though guardedly. The court ultimately 
escaped from the inconvenient results of this proposition,^^^ 
but to this day the court acts as a whole upon questions sub- 
mitted and opinions are generally rendered ^^Per Curiam. " The 
second notable change is that the importance of the questions 
and the solemnity of the occasion are made concurrent condi- 
tions; both requirements must be satisfied before the court is 
required to answer. As already remarked, perhaps in common 
sense this qualification is unnecessarily verbose, for the solemnity 
of an occasion ought to make a question important, as a question 
of sufficient importance might well give solemnity to the occa- 
sion of its consideration. Still if the judges in Colorado had 
been disposed to construe the clause as strictly as it has been 
done elsewhere, the concurrence of these requirements would 
have given them an excellent means of limiting its operation. 
Finally, as in Missouri, the opinions are to be ''pubUshed in 
connection with the reported decisions of said court." As 
far as can be ascertained, this has been done faithfully and with 
reasonable promptness, though the group of opinions given in 
each session of the legislature is not chronologically arranged 
within itself, for the first few sessions. ^"^^ 

The privilege of judicial consultation has been more widely 
used in Colorado than in any other State. Ninety-three opin- 
ions in all have been recorded in a period of thirty years. The 
governor has made twenty-four requests, the senate thirty-six, 
the house thirty-two, and the senate and house jointly, one. 

^o* In re Priority of Legislative Appropriations, 19 Colo. 58. 

2" In re Fire and Excise Commissioners, 19 Colo. 482; and see p. 229 
infra. 

208 The inconvenient failure to date decisions in the Colorado reports 
makes it difficult to check up a matter like this. 



HISTORY OF THE ADVISORY OPINION 53 

Of the sixty-nine for which the inquiring spirit of the law- 
makers is responsible, seventeen were given to the legislature 
of 1887, thirteen to that of 1889, six to that of 1891, and nine 
to that of 1893. Recent legislatures have limited themselves 
to from one to three requests each. Possibly this is due to 
improvement in the personnel of the lawmaking body; cer- 
tainly if there is not greater ability there, there is at least greater 
self-confidence. It would be very interesting to know whether 
the decrease in the number of advisory opinions asked has been 
preceded or accompanied by a decrease in the number of laws 
rejected by the supreme court as unconstitutional. Refusals 
to answer have been unusually numerous also, reaching a total 
of twenty-four. Sixteen of these, beginning ^Adth the very 
first one,^°^ rested, in whole or in part, upon the proposition 
that such constitutional provisions could not be considered as 
authorizing an ex parte adjudication of private rights. This 
was a perfectly simple proposition, which had already been 
recognized in other States, and which was quite in accord mth 
the best authority in the Enghsh antetype. However, the 
Colorado justices have given it a somewhat forced appHcation, 
and the frequent recurrence of this same objection must be 
charged partly to judicial severity, partly to legislative stupid- 
ity. 

I think it must be said that the scheme, on the whole, has 
worked well in Colorado. As will appear in a subsequent 
chapter,^^^ the advice of the court is usually followed, and its 
opinions have been a very valuable aid both to the executive 
and the legislative departments. The judicial department has 
suffered no loss of independence or prestige, and the judicial 
functions have not been seriously impaired. I am not aware 
that any movement has been made to do away with the device 
and it is to be hoped that failure would attend any such attempt. 

2°^ In the Matter of Senate Resolution on the Subject of Irrigation, 
9 Colo. 620. 

210 See pp. 154-158 injra. 



54 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

h. South Dakota. In this most recent adherent to the ad- 
visory opinion, as in the New England States, the clause formed 
part of the original constitution.^^^ For some reason (perhaps 
because of the notorious flood of legislative interrogations in 
Colorado in 1887 and 1889) the privilege of judicial consultation 
is limited to the governor, but there is a decided improvement 
in wording upon the Florida clause. Opinions may be required 
"upon important questions of law involved in the exercise of 
his executive powers and upon solemn occasions." The omis- 
sion of the word ''constitutional" (responsible for six of the nine 
refusals in Florida) is most commendable. Also the adjunction 
of the phrase ''and upon solemn occasions" as an independent 
class of cases should make the clause much more flexible and 
useful; no test case has arisen, but the judges have indicated 
ohiter that they would construe this dependently.^^^ However, 
the opinion given in 19 14^^^ is contra. 

The device has been used very sparingly — twelve times 
altogether, and only once since 1900. The judges may be 
responsible for this, for their rephes have not been cordial and 
they have been disposed to give the section "a restricted rather 
than an enlarged interpretation. "^^"^ The proportion of refusals 
is large — four out of twelve requests — but they have not been 
unreasonable; more would have been quite justifiable.^^^ Ap- 
parently the court has construed the veto power of the governor 
as an executive power,-^^ which really permits the testing of a 
bill's constitutionaHty before it is enacted into law.^^" In fact 
the court has indicated a willingness to answer purely legisla- 

^^^ For the text of the provision see Appendix I. 

"2 In re House Resolution No. 30, 10 S. D. 249. 

213 In re Opin. of Judges, 34 S. D. 650. 

2" In re Chap. 6, Session Laws of 1890, 8 S. D. 274. 

21^ For example In re Limitation of Taxation, 3 S. D. 456, and In re 
State Census, 6 S. D. 540. 

*" Cf. In re Executive Communication, 23 Fla. 297. 

2" In re Limitation of Taxation, 3 S. D. 456, and perhaps In re State 
Warrants, 6 S. D. 518. Cf. the scheme in Panama and Colombia, p. 94 infra. 



HISTORY OF THE ADVISORY OPINION 55 

tive questions as long as private property rights were not 
involved.2^^ But little use has been made of these opportuni- 
ties. 

2. When Not Authorized by the Constitution 

It is not the purpose of this section to examine those cases 
where requests have come from sources other than those 
empowered to interrogate the supreme court when an ad- 
visory opinion clause existed in the constitution.^^^ But in 
many of the States, there have been occasions when the need of 
judicial advice was so keenly felt, that attempts have been made 
to secure such assistance without any constitutional author- 
ization whatever. Indeed some legislatures have tried to impose 
upon the judges an obhgation to answer by law. Sometimes 
judicial opinions are not required in so many words, but extra- 
judicial duties are imposed which in effect involve the ehcitation 
of such opinions, purely by way of advice. These different kinds 
of extra-constitutional judicial consultation will be reviewed here 
briefly. 

a. Federal Government of the United States. The advan- 
tages of judicial assistance in legislative matters was clearly 
seen by several of the leaders in the constitutional convention 
of 1787. Madison, Ellsworth, James Wilson and Gouverneur 
Morris urgently advocated that the judiciary be joined with 
the executive as a revisory council to pass upon legislative acts 
of the other department. Several reasons were advanced for 
such a scheme. It was feared that a popularly elected legis- 
lature would be too strong and would become master of the 
other departments of government. The executive would need 
the reinforcement of the judiciary^^^ and the judiciary must 
have some such means of defending itself against legislative 
encroachments.^^ Then, too, the character of legislation 

218 In re State Census, 6 S. D. 540. 

219 See pp. 152-4 injra. 

220 Wilson, in 5 Ell. Deb. p. 121. 

221 Madison, ihid.,-^. 178-80] 



56 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

would be improved. ''The aid of the Judges will give more 
wisdom and firmness to the Executive. They will possess a 
systematic and accurate knowledge of the Laws, which the 
Executive cannot be expected always to possess."^ "It 
would be useful to the Legislature by the valuable assistance 
it would give in preserving a consistency, conciseness, perspicu- 
ity and technical propriety in the laws. ... It would . . . 
be useful to the community at large as an additional check on 
those unwise and unjust measures which constituted so great 
a portion of our calamities. "^^ It would hinder the passage 
of pernicious laws and discourage demagogues from attempting 
to get them passed; if the judges were compelled to wait till 
the laws came before them in judicial proceedings, they could 
only negative laws which were unconstitutional; in a revisory 
council they could negative any unjust or harmful law.^^^ The 
chief arguments in opposition were two. First, it was pointed 
out that this council would violate the principle of the separa- 
tion of powers.22^ This evoked the reply that the separation 
of powers argument really had no weight in this case, or if it 
did it applied as well to executive revision and veto as to judi- 
cial; and Gouverneur Morris added that the device would really 
make more certain the separation of powers, for the legislature 
was so strong that the other departments would have to be 
combined to resist encroachments on their field.^^ Then it 
was claimed that the judges ought not to be biassed in their 
exposition of the laws by having participated in the making 
of them.22^ But Madison objected that "a small proportion 
of the laws coming in question before a Judge would be such 
wherein he had been consulted. "^^ Although this revisory 

222 Ellsworth, ibid., p. 399. 

223 Madison, ibid., p. 401. 
22^ Mason, ibid., p. 403. 
228 Ibid., pp. 122 and 401. 
^Ibid., p. 404. 

^"f Ibid., p. 122; and see Gerry, ibid., p. 401. 
^^Ibid., p. 122. 



HISTORY or THE ADVISORY OPINION 57 

council was urged on five different occasions,^^ the convention 
would not give its approval. Charles Pinckney then proposed^^" 
a clause which (mutatis mutandis) was identical with that al- 
ready existing in Massachusetts, except that opinions were 
to be required from the court instead of the justices.^^ This 
was referred without debate to the Committee of Detail, and 
saw the Hght of day no more. 

It has been intimated by Professor Beard^^ that the failure 
of the revisory council was due to a feehng in the convention 
that the supreme court would sufficiently control legislation 
through judicial revision; but there is very little evidence of 
the sentiment of the convention on the relations between 
executive and judiciary. In general, they were to be indepen- 
dent, that is clear; but how much cooperation did this principle 
permit? President Washington, who had presided at the 
convention, evidently thought it should be Uberal in extent. 
In 1790 he wrote to the justices, expressing his persuasion that 
the judiciary should be independent in its operations, but 
intimating his wilhngness to receive suggestions from them on 
the organization of the judicial system.^^ In 1793, the difficult 
questions involved in our relations with France prompted him 
to go much farther. Probably it was in a cabinet meeting of 
July 12th that "it was determined to request the answers of 
the judges of the supreme court of the United States to a series 
of questions comprehending all the subjects of difference which 
existed between the executive and the minister of France 
relative to the exposition of the treaties between the two coun- 

229 May 29, Madison's Journal, I, p. 62; June 4, ibid., I, pp. 101 and 107; 
June 6, ibid., I, pp. 121-124; July 21, ibid., II, pp. 398-405; aiid August 
15, ibid., II, p. 533. 

230 Mad. Jour. II, p. 558; 5 Ell. Deb. p. 445. 
^^ Cf. the form of the clause in Colorado. 

2^ The Supreme Court and the Constitution, p. 63. 
233 Spark's Washington, X, p. 86. 



58 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

tries. "^^ In a letter from Jefferson, Secretary of State, to 
the justices, dated July 18th, the latter are informed that the 
war has been responsible for many difficult questions of a legal 
nature which were causing the executive department much 
difficulty, but were usually presented in such a way that they 
could not be brought before the courts in judicial proceedings. 
"The President would, therefore, be much relieved, if he found 
himself free to refer questions of this description to the opinions 
of the judges of the Supreme Court of the United States, whose 
knowledge of the subject would secure us against errors dan- 
gerous to the peace of the United States, and their authority 
insure the respect of all parties. He has therefore asked the 
attendance of such judges as could be collected in time for the 
occasion, to know, in the first place, their opinion, whether the 
public may with propriety be availed of their advice on these 
questions? And if they may, to present, for their advice, the 
abstract questions which have already occurred, or may soon 
occur, from which they will themselves strike out such as any 
circumstances might, in their opinion, forbid them to pronounce 
Qjj "235 Probably a day or two later twenty-nine questions 
were submitted to the justices, dealing almost entirely with 
our rights and obligations as a neutral state.^^^ The judges 
evidently hesitated to reply, for in a letter of July 23rd^^ the 
president assents to a delay until the opinions of absent justices 
can be ascertained. Marshall says^^ it was about July 25th 
that the judges communicated^^^ to the president their un- 
willingness to state their opinions on the question ssubmitted. 
" Considering themselves merley as constituting a legal tribunal 

^* Marshall's Life of Washington, V, p. 433. 

236 Jefferson's Works, IV, p. 22. 

^* For the text of these questions see Spark's Washington, X, App. 

XVIII. 

2" Spark's Washington, X, p. 359. 

238 Life of Washington, V, p. 441. 

239 Unfortunately the exact text of this communication is not available. 



HISTORY OF THE ADVISORY OPINION 59 

for the decision of controversies brought before them in legal 
form, those gentlemen deemed it improper to enter the field 
of poUtics, by declaring their opinions on questions not growing 
out of the case before them. "^^^ Early in August the president 
and cabinet acted independently of the judiciary, and, using 
their own judgment^^ as to the points of law involved, pro- 
claimed the eight rules so well known in the early history of 
international law in the United States.^^ There appears to 
be no other instance in our history where the executive has 
sought the extra-judicial advice of the supreme court justices, 
and the rule of this case has been accepted as a principle of our 
constitutional law. ''The judicial department . . . can be 
called upon only to decide controversies brought before them 
in a legal form; and therefore are bound to abstain from any 
extra-judicial opinions upon points of law, even though solemnly 
requested by the executive. "^^ 

It remains to consider the relations of the legislative depart- 
ment and the judiciary. Several times the former has endeav- 
ored to impose duties on the courts which were not judicial 
in character. On March 23, 1702, Congress passed an act 
dealing with widows' and orphans' claims and invalid pensions.^ 
United States circuit courts were required to receive applications 
for rehef under the act and decide the merits thereof, but such 
decisions might be reconsidered or suspended by the secretary 
of war, or revised by Congress. The different circuit courts 

2*0 Marshall's Life of Washington, V, p. 441. In connection with this 
1793 case, the comment of Thayer (Legal Essays, pp. 42-60) is worth quot- 
ing: "It was, perhaps, fortimate for the judges and their successors that 
the questions then proposed came in so formidable a shape as they did. 
. . . Had they been brief and easily answered the Court might, not 
improbably, have slipped into the adoption of a precedent that would have 
engrafted the English usage upon our national system. " 

2" See letter of August 4th in Spark's Washington, X, App. xvm. 

2*2 For text see Spark's Washington, X, App. xix. 

2« Story on the Constitution, II, s. 1571. 

2« 1 U. S. Stat, at L., 243. 



60 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

promptly sent letters to the president (on April 5 th, April 18th 
and June 8th) stating that they would not act in such cases 
and setting forth their reasons for refusing.^^^ All of them 
referred to the separation of powers as a fundamental principle 
of our constitution, and denied the right of either executive 
or legislature to impose any but judicial duties upon the courts, 
to be exercised as prescribed in the constitution, the provisions 
of which did not empower Congress or any executive officer 
''to sit as a court of errors on the judicial acts or opinion? of 
this court. " Some of them doubtfully indicated that they might 
act as individual commissioners appointed by official titles, 
to avoid giving distress to many meritorious individuals by a 
delay.^ The matter was brought before the supreme court 
by an application of the attorney-general for a writ of mandamus 
to a circuit court in a particular case.^^^ Meanwhile the presi- 
dent had communicated the remonstrances from the various 
courts to Congress,^^ and while Hayburn's Case was still under 
advisement. Congress provided another way for the relief of 
pensioners ;^^ so the opinion of the supreme court remains 
undisclosed, but Taney, C. J., said, many years later, that 
"the repeal of the Act clearly shows that the President and 
Congress acquiesced in the correctness of the decision (sc, 
the opinions of the circuit courts) that it was not a judicial 
power. "2^*^ An unreported case came to light at the same time 
(1851), in which the supreme court permitted the United 
States to recover money paid as a pension under an award of 
Jay, C. J., and Cushing, J., sitting as commissioners under the 
Act of 1792.2^1 Taney, C. J., said this meant that the supreme 

2*6 See text in Hayburn's Case, 2 Dall. 409. 

^ See especially the opinion of the court for the N. C. district — I.e. 
"'Hayburn's Case, 2 Dall. 409. 

2*8 On April 16th, April 21st and November 7th; see Annals of Cong. 
Ill, 557, 572 and 671. 

2" 1 U. S. Stat, at L., 324. 

250 In U. S. V. Ferreira, 13 How. 40, at p. 50. 

2*' U. S. V. Yale Todd, reported in note to U. S. v. Ferreira, ubi supra. 



HISTORY or THE ADVISORY OPINION 61 

court as a whole, after argument, was convinced that when 
an Act intended to confer power on courts as a judicial power, 
it would not be construed as the nomination of the judges of 
those courts to act as commissioners in the exercise of that 
power. In U. S. v. Ferreira,^^^ Congress had passed an act^^ 
directing the district judge for the Northern District of Florida 
to receive and adjudicate certain claims of Spanish inhabitants 
for losses suffered during the operations of the American army 
in Florida, and to report the decisions and evidence to the 
secretary of the treasury, who should pay the same, if he were 
satisfied that they were just and equitable. The district judge 
had decided a claim in favor of Ferreira, and the district at- 
torney appealed to the supreme court. Here the case was 
dismissed for want of jurisdiction, Taney, C. J., saying it was 
clear that the judge acted as a specially constituted commis- 
sioner whose award was subject only to the approval of the 
secretary of the treasury; this was not a judicial proceeding, 
and no appeal would lie to the supreme court. He cited Hay- 
burn's Case as an authority, but U. S. v. Yale Todd was not 
called to his attention till afterwards. 

Since the days of Washington, then, it has been a settled 
rule that the supreme court of the United States will not exer- 
cise extra-judicial functions, at the behest either of the executive 
or of Congress, and cannot be compelled to do so by any means 
short of a constitutional amendment.^^^ The judicial power ex- 
tends only to cases arising under the constitution, laws and treaties 
of the United States,^^^ and a case arises only when a matter is 
submitted to the court ''by a party who asserts his rights in the 

252 13 How. 40. 

2" 9 U. S. Stat, at L., 788. 

2" Cf. the words of Taney, C. J., in Gordon v. U. S., 117 U. S. 697, at 
p. 700: "Its jurisdiction and powers and duties being defined in the organic 
law of the government, and being all strictly judicial, Congress cannot re- 
quire or authorize the court to exercise any other jurisdiction or power, or 
perform any other duty." 

2S5 Const. Art. Ill, s. 2. 



62 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

form prescribed by law. "^^^ Also the jurisdiction extends only 
to cases where the court can render judgment in the legal sense 
of the term.^^ This means that the judgment must be "conclu- 
sive upon the rights of the parties, and process of execution 
awarded to carry it into effect. The award of execution is a part, 
and an essential part, of every judgment passed by a court exer- 
cising judicial power. It is no judgment, in the legal sense 
of the term, without it. . . . It would be merely an opinion, 
which would remain a dead letter and without any operation 
upon the rights of the parties, unless Congress should at some 
future time sanction it."^^^ More recently (in 1891) the 
supreme court has even frowned upon a "friendly suit" brought 
to test the constitutionality of a law unsuccessfully opposed 
in the legislature. ^^^ 

The court of claims is a curious anomaly. Created in 1855 
with jurisdiction of all claims (with two exceptions) in respect 
of which "the party would be entitled to redress against the 
United States, either in a court of law, equity, or admiralty, 

256 Marshall, C. J., in Osbom v. Bank of U. S., 9 Wheat. 319. 

2*7 Taney, C. J., in Gordon v. U. S., ubi supra., at p. 704. 

^Ubid., at p. 702. 

269 Chicago, etc. R. R. Co. v. Wellman, 143 U. S. 339. See especially 
Brewer, J.,'s words at p. 344: **The theory upon which, apparently, this 
suit was brought is that parties have an appeal from the legislature to the 
courts; and that the latter are given an immediate and general supervision 
of the constitutionality of the acts of the former. Such is not true. When- 
ever, in pursuance of an honest and actual antagonistic assertion of rights 
by one individual against another, there is presented a question involving 
the validity of any act of any legislature, State or Federal, and the decision 
necessarily rests on the competency of the legislature to so enact, the court 
must, in the exercise of its solemn duties, determine whether the act be con- 
stitutional or not; but such an exercise of power is the ultimate and supreme 
function of courts. It is legitimate only in the last resort, and as a necessity 
in the determination of real, earnest and vital controversies between in- 
dividuals. It never was the thought that, by means of a friendly suit, a 
party beaten in the legislature could transfer to the courts an inquiry as 
to the constitutionality of the legislative act." 



HISTORY OE THE ADVISORY OPINION 63 

if the United States were suable," it does not seem to have been 
a fuD-fledged court exercising judicial powers until 1866. " Origi- 
nally it was a court merely in name, for its power extended 
only to the preparation of bills to be submitted to Congress, "^eo 
An amending act of 1863^^^ purported to authorize the rendering 
of final judgments, but section fourteen provided "that no 
money shall be paid out of the treasury for any claim passed 
upon by the court of claims till after an appropriation therefore 
shall have been estimated for by the Secretary of the Treasury. " 
Because this necessarily imphed revision of the decisions by 
the head of an executive department, the supreme court held 
that judicial power was denied the court of claims, and refused 
to entertain an appeal from its decisions.^^^ In the opinion 
of Taney, C. J., the action of the court of claims was like that 
of an auditor or comptroller. "In principle, there is no differ- 
ence between these two special jurisdictions . . . and neither 
of them possesses judicial power in the sense in which those 
words are used in the Constitution. The circumstance that 
one is called a court and its decisions called judgments cannot 
alter its character or enlarge its power. "^^^ The defect was 
remedied by the repeal of the offending section in 1866,^^^ and 
the supreme court thenceforth allowed appeals from the court 
of claims as regulated by statute.^^^ Strictly speaking, there 
is perhaps, an exception here to Chief Justice Taney's assertion 
that process of execution is a necessary concomitant of judicial 
power; but practically the exception is only apparent, for the 

260 U. S. V. Klein, 13 Wall. 144. 

261 Chap. 92, 12 Stat. L. 765. 

2«2 Gordon v. U. S., 2 Wall 561. See statement of court record in U. 8. 
V. Jones, 119 U. S. 477. 

263 From an opinion written for Gordon v. U. S. and printed as an ap- 
pendix in 117 U. S. 697. 

264 Chap. 19, 14 Stat. L. 9. 

265 U. S. V. Jones, 119 U. S. 477, and cases cited therein. 



64 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

Statute really attaches an automatic execution to every final 
judgment of the court of claims. ^^ 

However, the court of claims still exercises extra-judicial 
functions. Under the Bowman Act of 1883, the senate or 
house of representatives or any of their committees may refer 
pending claims or matters to the court of claims for the deter- 
mination of facts, and any executive department may refer 
pending claims or matters involving questions of law or fact; 
in either case, the court is not to enter judgment, but must 
report its findings of fact or opinions of law to the referring 
body or individual. "The function of the Court of Claims, 
in such a case, (is) ancillary and advisory only," and no appeal 
therefrom will be entertained by the supreme court.^^^ 

b. Pennsylvania. According to Thayer^^ opinions were 
given by the Pennsylvania judges to the executive department 
on several occasions between 1780 and 1790. RespubUca v. 
De Longchamps^^^ is an instance of such an opinion. The 
defendant had been found guilty of violence done to the consul- 
general of France but ''sentence of the court was suspended, 
in consequence of a case stated by his Excellency the President, 
and the Honorable Supreme Executive Council, for the opinion 
of the Judges. It was argued in open court, on the 10th and 
12th of July, by five Counsel, two for the affirmative and three 
for the negative." The president and council had asked 
whether the defendant could be legally deUvered up to be 
tried in France, as demanded by the French minister, and if 

2«« "In all cases of final judgments by said court, or, on appeal, by the 
said supreme court, where the same shall be affirmed in favor of the claimant, 
the sum due thereby shall be paid out of any general appropriation made by 
law for the payment and satisfaction of private claims, on presentation to 
the Secretary of the Treasury of a copy of said judgment, certified by the 
clerk of said court of claims, and signed by the chief justice, or, in his ab- 
sence, by the presiding judge of said court. " Section 7 of Chap. 92, 12 
Stat. L. 765. 

2" In re Sanborn, 148 U. S. 222. 

** Cases on Constitutional Law, I, p. 183 n. 

»»lDall. Ill (1784). 



HISTORY OF THE ADVISORY OPINION 65 

not, whether imprisonment under this conviction could con- 
tinue till the king of France was satisfied. The judges returned 
a negative answer to both questions and then pronounced 
sentence. 

The legislative department also sought judicial assistance 
in 1807,2^° enactmg "That the judges of the Supreme Court 
are hereby required to examine and report to the next legisla- 
ture, which of the EngHsh statutes are in force in this Common- 
wealth, and which of those statutes in their opinion ought to 
be incorporated into the statutory laws of this Conunonwealth. " 
The judges responded cordially, indicating that they were 
honored by the request and more than willing to comply with 
it. After making a careful examination of the Enghsh statute 
law as well as the constitutional and statute law in Pennsylvania, 
they submitted a schedule of Enghsh statutes then in force 
in Pennsylvania, with recommendations as to their inclusion 
in or omission from a codification. 

c. New York. There is clear evidence that in New York 
too, the judges gave extra-judicial assistance to the other two 
departments of government though not required to do|so by 
the constitution. However, they seem to have considered 
legislative authorization a prerequisite. In March, 1801, 
Governor Jay asked the judges of the supreme court and the 
chancellor whether members of the council of appointment 
could make nominations, or could only confirm or reject the 
governor's nominations. They "refused to decide the question 
as extra-judicial. "2^^ With statutory assistance, the executive 
has fared better in a particular class of cases. A law of 1829^^2 
provided that, following conviction in capital cases, the pre- 
siding judge should communicate to the governor notice of 
the sentence and his own notes of the testimony; and the gov- 

"0 3 Binney, 595. 

2" See Pellew's John Jay, p. 334; also'Roberts' New York, II, p. 489. 

2" 2 Rev. St. 658, Pt. IV, tit. 1, ss. 13. 14. 



66 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

ernor might "require the opinion of the Chancellor, the Jus- 
tices of the Supreme Court, and of the Attorney-General, or of 
any of them, upon any statement so furnished. "^^^ In People 
V. Green^'^ such an opinion was required as to whether certain 
evidence had been properly admitted.^^^ Counsel appeared 
for both the People and the defendant. The Chancellor, C. J., 
and Beardsley, ]., advised the governor that the trial court 
had committed no error, and the defendant was executed. 
At least one of these judges^^^ joined in an opinion to the 
legislature the following year.^^^ In the absence of constitu- 
tional authority, the legislature passed an act (1845) recom- 
mending a constitutional convention and referred it to the peo- 
ple. The act provided that the delegates to the convention 
should be the same in number as the members of the Assembly. 
The people approved it in 1845. The apportionment of repre- 
sentatives had been fixed by the constitution till January 1, 
1847, but in 1846 the legislature passed a new apportionment 
act, and a bill was introduced to base the number of convention 
delegates on the new apportionment. This bill was referred 
to the justices by the house, with the request for an opinion 
as to whether the legislature had power to change the act of 
1845. The judges expressed their regret that ''questions of 
so much deUcacy and importance should be presented under 
circumstances which have given us but a few hours for confer- 

"3 Thayer, Cases on Constitutional Law, I, p. 183 n., says that by a 
statute of 1847, the judges of the court of appeals were substituted for the 
Chancellor, and that the law still exists in that form. N. Y. Code Crim. 
Proc, ss. 493, 494. 

"■» 1 Denio 614. 

2^5 The report says the governor "consulted his legal advisers in such 
cases." 

"6 Beardsley, J. 

2" See Deb. Mass. Conv. 1853, I, pp. 138-40; it may also be found in 
Jameson (Constitutional Conventions, pp. 386-414 and 663), who says it 
was probably omitted from the regular reports because authorized by no 
constitutional provision. 



HISTORY or THE ADVISORY OPINION 67 

ring together and reducing our opinion to writing; " but answered 
that the act of 1845 must stand as approved by the people and 
that the apportionment referred to therein is the old appor- 
tionment.^^^ Notwithstanding, the legislature passed the bill 
and the people accepted it and elected delegates on the basis 
of the new apportionment. 

It seems doubtful that this precedent would be followed 
now. In a submitted controversy on an agreed case,^^^ the 
fifth prayer involved the question whether a city could do cer- 
tain things not then permitted in its charter, if the legislature 
amended the charter. WilHams, J., (with the concurrence 
of the other justices) repHed: "We are by this submission 
gravely asked to say whether such an amendment, if made 
by the Legislature, would be constitutional. ... It is time 
enough to pass upon the constitutionahty of an act of the 
Legislature after it has become a law. Courts do not instruct 
the Legislature in advance as to what powers they have under 
the Constitution to pass laws." But of late years several 
attempts have been made to estabhsh the advisory opinion 
in the constitutional system of New York. In 1907 and 
1908, an amendment was proposed in the Assembly per- 
mitting either house or the governor to require the opinion 
of the court of appeals on important questions of law.^^^ In 
1912 and 1913 the same amendment with the addition of the 
phrase "and upon solemn occasions," was proposed .^^^ Also 
in 1913, an amendment was proposed^^^ giving each house 
authority to require opinions upon "important biUs pending in 

278 Jameson {I.e.) says this opinion is wrong. 

2" Cataract Power Co. v. Buffalo (1909) 115 N. Y. Supp. 1045. 

280 1907 Assem. No. 2239 (Int. 1648), Assem. J. 1896, and 1908 Assem. 
No. 773 (Int. 675), Assem. J. 293. 

2811912 Assem. No. 1051 (Int. 956), Assem. J. 459, 940, 1045, 1148; 
and 1913 Assem. No. 682 (Int. 656), Assem. J. 224, 1055, 1119, 1158, 1271, 
1663. 

282 1913 Assem. No. 180 (Int. 177), Assem. J. 64, 1054, 1116, 1158, 1270, 
1564, 1947, 2010. 



68 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

the legislature, before their third reading, as to their constitu- 
tionality, excepting, however, private or local bills." In 
none of these cases did the bill reach the stage of presentment 
to the people.^^ Finally, in 1915, both of the above proposi- 
tions were introduced in the constitutional convention of that 
year,2^ but neither was reported out by the judiciary committee, 
d. North Carolina. In North Carolina, too, opinions have 
been given to both departments, though with express reserva- 
tions as to cases wherein private property rights were involved. 
The senate, in 1849 ,2^ asked the opinion of the court on certain 
constitutional questions which arose in a contested election. 
As the questions were of a judicial character and since there 
was no doubt in their minds as to the rules of law requested, 
the justices "deemed it a duty of courtesy and respect to the 
Senate, to consider the points submitted to them and to give 
their opinions thereon." But they stated clearly that the 
reply was "not strictly an act of official obHgation," and that 
if they had been in doubt as to the law, "they would have 
been obliged to defer their answer until the parties or their 
counsel could submit their views." Again, in 1869,^^ an 
opinion was requested by the General Assembly, deahng with 
the term of office of its members. Pearson, C. J., and Dick, 
J., were sure the judges were not forbidden by the constitution 
to answer in such cases and "the question is more easy of 
solution now, when it can be treated as a dry matter of con- 
stitutional law, than it might be hereafter, when complicated 
with collateral considerations." They distinguished the re- 
fusal to reply in the Homestead Act case,^^^.as that involved 
property rights that might come before the court. But Reade 

2*3 N. Y. State Constitution Annotated, Pt. II, pp. 69, 137, 138. 
2*» The first by Mr. Donnelly on April 27th, the second by Mr, Parsons 
on June 10th. See Proposed Amendments, etc. No. 9 and No. 559. 
28S 31 N C. (9 Ire.) App. 

28« Opin.s of the Justices of the Supreme Court, 64 N. C 785. 
2*^ This must have been c. 1868-9; I have not been able to find it. 



HISTORY or THE ADVISORY OPINION 69 

Rodman and Settle, JJ., refused to give any opinion on the 
question stated, relying on the separation of powers principle 
as impHedly forbidding such extra-judicial advice — Rodman, 
J., adds "except on occasions of the most manifest necessity." 
This rebuff apparently discouraged the legislature from fur- 
ther interrogations — and the governor as well, though he had 
ceceived advice, given without question, in an extradition 
case of 1866.288 

e. Delaware. The legislature of Delaware, in 1852, gave 
the governor a statutory power to request opinions from the 
chancellor and judges on questions of constitutional or statu- 
tory law, necessarily involved in the proper discharge of his 
duty .289 This provision was still law in 1915,2^° but the gover- 
nor does not seem to have made any attempt to avail himself 
of it. Thayer29i mentions a request from the legislature to 
the governor (1895) that he submit to the judges a question 
relating to the apportionment of delegates to a constitutional 
convention, but he found no record of executive action. 

f. Illinois. No advisory opinion is recorded in the Illinois 
reports, to the knowledge of the writer, but a dictum of 1857 
may be mentioned in passing. The relator had asked for a 
writ of mandamus to compel the governor to issue certain 
bonds. This the court refused to grant, disclaiming any 
power to compel the other departments of government to act; 
but added that though the governor was independent of the 
court, ''should he consent to appear, asking our opinion on a 

288 In the matter of Hughes, 61 N. C. 57. 

289 "The chancellor and judges, whenever the Governor shall require 
it for pubHc information, or to enable him to discharge the duties of his 
oj0&ce with fidelity, shall give him their opinions in writing, touching the 
proper construction of any provision in the constitution of this State or 
of the United States, or the constitutionality of any law enacted by the 
legislature of this State. " Ch. 27, s. 4, of the Rev. Sts. of 1852 as Amended 
(1893), p. 245. 

290 Rev. Code 1915, c. 13, s. 2. Par. 402 on p. 220. 

291 Legal Essays, p. 55 n. 



70 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

point of law, it would be readily given. "^^^ j^ jg quite possible 
that the court only had in mind such cases as that in 17 lUinois, 
167, when the governor appeared voluntarily on an agreed 
case upon an application for a mandamus to compel him to 
issue certain commissions, and would have refused any advice 
to him in cases not regularly brought before them. 

g. Minnesota. The legislators of Minnesota were not so 
altruistic as those of Delaware, for when they attempted to 
impose upon the supreme court the statutory duty of acting 
as a source of general information, they bestowed the right 
of interrogation, not upon the governor but upon either house 
of the legislature.^^^ Twice the judges refused (without ex- 
planation) to recognize any obUgation to reply to questions 
put under the statute.^^"^ But the senate at least chose to look 
upon this as an oversight, and in 1865 again asked their opinions 
upon certain questions. The judges now. came out with a 
definite statement of their position with respect to the statute, 
and their refusal was put on record in the reports.^^^ McMil- 
lan, J., declares that the statute is unconstitutional, for the 
fundamental principle of the separation of powers "prohibits 
the imposition by one (department) of any duty upon either 
of the others not within the scope of its jurisdiction. . . . 
The duty sought to be imposed by the section of the act referred 
to, is, clearly, neither a judicial act, nor is it to be performed 
in a judicial manner. It constitutes the supreme court the 
advisers of the legislature, nothing more." Moreover ''we 
are prevented from voluntarily complying with the request, 
by the views we entertain of our judicial duty and the injurious 

"'People ex rel. v. Bissell, 19 111. 229. 

**' Comp. Stat. s. 15, ch. 4, provided that "either house may, by reso- 
lution, request the opinion of the supreme court, or an>- one or more of the 
judges thereof, upon a given subject, and it shall be the duty of such court 
or judges, when so requested, respectively, to give such opinion in writing." 

«"SJ. 1858, 718; SJ. 1863, 54, and Laws 1863, 75. 

'•• In the matter of the Application of the Senate, 10 Minn. 78. 



HISTORY OF THE ADVISORY OPINION 71 

tendency of such precedent." And he adds that "such a con- 
stitutional provision does not address itself to our minds with 
any favor." 

This definite opinion sufficiently suppressed the legislature, 
and no further requests appear. But the executive department 
evidently did not grasp that the reasons given apphed to it 
as well. In Rice v. Austin,^^^ an action brought against the 
governor, this official, through the attorney-general, asked 
the court for an opinion as to the construction of Laws 1869 
c. 96. The court dechned to comply with this request for the 
reasons stated in 10 Minnesota 78. Again in State v. Dike,^^'^ the 
secretary of state made a similar request, with the same result. 
Since then the supreme court has been undisturbed by extra- 
judicial interrogation. 

h. Connecticut. The judges of the supreme court in Connec- 
ticut (perhaps because of New England influence) were at first 
not averse to expressing extra-causal opinions upon questions 
of constitutional law. Acting by direction of the general 
assembly, the governor, in 1863, requested their opinions as 
to the constitutionality of the Soldiers' Voting Act of December 
24, 1862.'^^^ The judges, without question, examined the 
statute and certffied to the governor that it was unconstitution- 
al. Later "in accordance with the settled policy of the state 
and the presumed expectation of the Assembly," they furnished 
to the reporter their reasons for the opinion.^^^ In 1865 an 
opinion was given, in response to a direct interrogation from 
the assembly, as to whether a negro was a "citizen of the United 
States" within the Constitutional Amendment of October, 
1845. Here there was no discussion at aU.^*^° 

290 19 Minn. 103. 
3" 20 Minn. 363. 

28^ Questions re Soldiers' Voting Acts are the subject matter of an 
advisory opinion in 44 N. H. 633 (1863). 

293 0pin. of the Judges of the Supreme Court, 30 Conn. 591. 
3°° Opin. of the Judges of the Supreme Court, 32 Conn. 565. 



72 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

But two years later this growing practice came to an un- 
timely end.^^^ The assembly requested an opinion as to cer- 
tain proposed legislation for taxing the incomes from United 
States bonds held by inhabitants of Connecticut, and the 
judges unanimously declined to answer. They limited their 
refusal to questions as to the "vahdity of contemplated legis- 
lation," but the objections adduced were so comprehensive 
as to discourage any questions at all. Such opinions would 
be extra-judicial, they said, and not binding on anyone; yet 
they might have an undesirable influence should related cases 
later be brought before a court. It is intimated that such 
judicial action is probably invalid, ''both from its conflict 
with our judicial duties and from its conflict with the legislative 
duties of your honorable body." Finally they distinguish 
the two precedents already mentioned as cases of great impor- 
tance "where an immediate opinion was needed, and where the 
points involved could not Vv^ell be reached by ordinary litigation. " 
But the last statement is scarcely true of the Soldiers' Voting 
Acts, for the constitutionality of these was actually tested in 
regular judicial proceedings.^^^ The truth seems to be the 
judges wished to check a practice to them undesirable, before 
the force of precedent became irresistible. 

i. Vermont. The Soldiers' Voting Act in this State^^^ 
provided (s. 12) that: "This act shall not take effect until 
the Governor submits the same to the Judges of the Supreme 
Court, with the inquiry 'Are the provisions of this act con- 
stitutional?' and until the Governor has obtained in writing 
the opinion of said Judges thereon; and if the said Judges 
decide that the provisions of the act, or certain parts thereof, 
are unconstitutional, then the same, or such parts thereof as 

'"' Reply of the Judges of the Supreme Court to the General Assembly, 
33 Conn. 586. 

302 Chase v. Miller (Penn.) Am. L. Reg. 2 (N.S.) 146; Morrison v. 
Springer, 15 la. 304; State ex rel. v. Main (Wis.), see 15 la. 340. 

303 L. 1863, No. 5. 



HISTORY OF THE ADVISORY OPINION 73 

said Judges shall decide are unconstitutional, shall be null and 
void, and the residue thereof shall remain in full force and 
virtue." The governor submitted the Act to the judges in 
January, 1864, and the latter gave their opinions in writing on 
April 1st, complaining only that they had not enjoyed the 
advantages of argument by counsel.^^^ 

The success of this interrogation evidently prompted the 
legislators to perpetuate the practice, for in L. 1864 No. 70, 
we find a provision that the judges shall reply in writing, when 
the governor submits questions of law concerning the discharge 
of his duties.^°^ This continued in force^°^ almost to the date 
of writing. It was repealed (by a bill introduced in the senate) 
on March 30, 1915.^°'^ However, I have been unable to dis- 
cover a single reference made by the governor under the statute. 
It might be argued that its repeal is indicative of a feeling in 
the legislature that such opinions are undesirable. 

j. Kentucky. A single advisory opinion was given by the 
court of appeals in Kentucky in 1881, on a matter directly 
concerning the court itself.^^^ The governor referred a question 
as to his constitutional power to fiU by appointment a vacancy 
in the court, where the unexpired term was greater than one 
year. That the question was not h5rpothetical appears from 
the reply which contains official notice of the recent death of 
Cofer, J. However in 1895,^^^ the judges indicated an un- 
willingness to give ex parte opinions in cases which might be 

3o< Opin. of the Judges of the Supreme Court, etc., 37 Vt. 665. 

305 "Xhe governor, when the interests of the State demand it, may 
require the opinion of the judges of the Supreme Coiirt or a majority of 
them upon questions of law connected with the discharge of his duties. 
And the judges of the Supreme Court, or any of them, shall give, in writing, 
their opinion upon such questions." 

3o«Rev. L. 1880, s. 795; Pub. St. 1906, s. 1341. 

'"L. Vt. 1915, No. 84. 

^os Opin. of the Judges of the Court of Appeals, 79 Ky. 621. 

309 In re Board of Sinking Fund Commissioners, 32 S. W. 414. The 
opinion is marked: "Not to be ofl&cially reported;" and is not included in 
the Ky. reports. 



74 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

brought before them in some regular judicial proceeding, 
although they expressly refrained from deciding the question 
of jurisdiction, and, semble, based their refusal to reply to the 
Board of Sinking Fund Commissioners on the ground that 
"the court would be as much embarrassed in determining the 
questions made as the commissioners." 

k. Ohio. In State v. Baughman (1882),3i^ the justices 
of the Ohio supreme court took the stand that advisory opinions 
should not be given except under a constitutional clause re- 
quiring them. The general assembly had directed the attorney- 
general to institute quo warranto proceedings against the police 
commissioners of Xenia, and if possible to procure the decision 
of the supreme court on several constitutional questions sug- 
gested. The position of the court is clearly stated by Johnson, 
J.: "It is only so far as these several questions are involved 
in the title to the offices in question that this court is author- 
ized to answer them. ... A decision on any of the questions 
suggested, not necessary to a determination of the right of 
defendants to exercise these functions would not be a judicial 
settlement of such questions, but would be without authority 
conferred by the constitution to make it. . . . If the judiciary 
were to assume to decide hypothetical questions of law not 
involved in a judicial proceeding in a cause before it, even though 
the decision 'would be of great value to the general assembly' 
in the discharge of its duties, it would, nevertheless, be an un- 
warranted interference with the functions of the legislative 
department that would be unauthorized, and dangerous in 
its tendency." 

1. Nebraska. The advisory opinion has flourished extra- 
constitutionally in Nebraska to as great an extent as it did in 
Missouri and almost as great as in South Dakota under a con- 
stitution. Ten opinions were given in a period of ten years, 
four to executive organs, six to one or both houses of the legis- 

31" 38 Ohio St. 455. 



HISTORY OF THE ADVISORY OPINION 75 

lature. The first one recorded was in 1883,^^^ where the house 
of representatives asked the supreme court judges questions 
in connection with contemplated legislation regulating the 
management of railroads in Nebraska. The judges comphed 
cheerfully, but their answers were given with diffidence because 
of the lack of legal assistance. The same year, questions re- 
garding the investment of school funds were referred, by the 
Board of Educational Lands (which included the governor), 
for the justices to answer "if not inconsistent with their duties. " 
They promptly rephed that such a function was not inconsistent 
with their duties and proceeded to give the opinions requested.^^^ 
But after complying with two more requests of a similar nature 
— one from a board which did not include the governor,^^^ 
one from the auditor of pubUc accoimts^^^ — the court made a 
rule,^^^ in 1887, that "no questions not matters of actual htiga- 
tion, except when presented by either house of the legislature 
or a committee thereof, shall be presented to the court, save 
in the method prescribed by section 567 of the Code, and all 
such questions shall be filed and docketed as other causes." 
The legislature readily availed itself of the imphed permission 
herein contained, and five opinions are recorded in 1889 and 
j[ 39 J 316 j^ii Qf these, except the first, were entered on the 
docket under Rule 23, and counsel for both sides (as well as 
an amicus curiae in one case) were heard by the court before 
an opinion was given. This obviated the objection raised 
in 15 Nebraska, 679, but there were more serious breakers 
ahead. 

3" In re Railroad Commissioners, 15 Neb. 679. 

312 In re School Fund, 15 Neb. 684. 

313 In re Board of Public Lands and Buildings, 18 Neb. 340. 
31" In re Babcock, 21 Neb. 500. 

315 Rule No. 23 of July Term, 1887, in 22 Neb. 11. 

3^* In re State Warrants, 25 Neb. 659; In re Appropriations for Deputies, 
etc., 25 Neb. 662; In re Senate File 31, 25 Neb. 864; In re Quaere of the 
Procedure of the Two Houses, etc., 31 Neb. 262; and In re House Roll 
284, 31 Neb. 505. 



76 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

In 1893, the board of public lands and buildings submitted 
to the court questions as to their statutory duties. Maxwell, 
C. J., and Post, J., answered without comment, but Norval, 
J., forcibly declined to give any opinion.^^^ As the reference 
was not within Rule 23, the justices had not had the benefit 
of legal assistance, and that is a point of objection; but the 
dissenting opinion further declares that it is the duty of the 
court to pass upon the constitutionality of statutes only in 
actual Htigations, and that even the legislature could not 
increase the jurisdiction of the court.^^^ The justice asserts 
that he had given his opinion reluctantly in the two preceding 
cases, and was convinced that, overloaded with regular business 
as the court then was, in justice to htigants, they should "call 
a halt. " He won the rest of the court over to his way of think- 
ing, for in the rules of January 4, 1894,^^^ we find (Rule No. 23) 
that "only questions involved in matters, of actual litigation 
before the court will be entertained or judicially determined, 
and no opinion will be filed in answer to any merely hypotheti- 
cal question." This has been the rule to the present time.^^^ 
In conformity therewith, the judges have refused to give any 
administrative advice whatever, even in connection with a 
regular action before the court.^^^ 

m. Oklahoma. The practice introduced in New York in 
1829 of gubernatorial interrogation of the judges in capital 

3^^ In re Board of Purchase and Supplies for State Institutions, 37 Neb. 
425. 

318 Cf. Miller V. Wheeler, 33 Neb. 765. 

319 37 Neb. xiii. 

320 See Rule No. 32 of Feb. 17, 1898, in 52 Neb. xviii, and Rule No. 17 
of Feb. 1, 1914, in 94 Neb. xv. 

321 "The questions which may arise under this . . . revenue act . . . 
are innumerable, but until they are brought here in a proper proceeding, 
and we have had the benefit of argument and examination, we cannot under- 
take a duty which the law itself imposes upon those appointed to administer 
it, or lay down rules in advance of any controversy." Per Sullivan, C. J., 
in State v. Fleming, (1903) 70 Neb. 523. 



HISTORY OF THE ADVISORY OPINION 77 

cases where the defendant has been convicted^22 ^g^g adopted 
in Oklahoma in 1903.^^ The supreme court gave an opinion 
in such a case, though with hesitation, in 1908,^^ but the fol- 
lowing year^^ they unanimously refused further compHance 
with the statute. The opinion given on that occasion states 
that there is grave doubt as to whether the Act is constitu- 
tional, since it " purports to impose on this court a duty which, 
if discharged, would amount neither to a judicial act, nor one 
to be performed in a judicial manner, but one which, in effect, 
would make the judges of this court, or some one of them, ad- 
visers of the Governor." But even if the constitutionahty 
be waived, they claimed all criminal jurisdiction had passed 
to the newly created Criminal Court of Appeals, and "any 
authority to express an opinion is in that court." 

The next case of this description that came before the 
governor was referred by him to the Criminal Court of Appeals.^^^ 
The judges thereof readily gave their advice, saying it was un- 
necessary to consider the constitutionahty of the statute, "as 
an opinion of this kind has not the force of an adjudication, 
and is merely persuasive or, at most, advisory. " Subsequently 
two opinions were given without comment.^^^ But in 1911,^28 
the judges stated that the intention of the statute was to re- 
quire an opinion only "where an appeal has not been taken 

322 See p. 65 supra. 

323WUson's Rev. and Ann. St. of 1903, ss. 5588-9: "The judge of a 
court at which a conviction requiring a judgment of death is had must, 
immediately after the conviction, transmit to the Governor, by mail or 
otherwise, a statement of the conviction and judgment, and of the testimony 
given at the trial. The Governor may thereupon require the opinion of 
the Judges of the Supreme Court or any of them upon the statement so 
furnished." This is in Snyder's St. ss. 6927-8. 

324 State V. Johnson, 21 Okla. 40. 

325 In re 0pm. of the Judges, 25 Okla. 76. 
32« Opin. of the Judges, 3 Okla. Cr. 315. 

327 In re Opin. of the Judges, 4 Okla. Cr. 594; In re Opin. of the Judges, 
6 Okla. Cr. 18. 

328 In re 0pm. of the Judges, 6 Okla. Cr. 210. 



78 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

from a judgment and sentence of death;" and in 1912,^^9 j^^ 
the last case reported, an opinion was refused on this very 
ground, as *'it would be improper for the judges to express 
any opinion in an ex parte proceeding as to the rights of a de- 
fendant which may afterwards be brought before them by 
appeal, where all parties interested would be represented. To 
pass upon such questions in advance of an appeal would be 
to deprive a defendant of his constitutional right to be heard 
in his own behaK." 

Summary. A review of the practice in the twelve States 
considered above will show that there is a pronounced tendency 
in recent years for the courts to put a stop to the giving of 
extra-judicial advice where it is not required by the constitution. 
Most of the precedents enumerated above are of remote date, 
and many of them have been expressly repudiated. Of those 
States where there was an attempt to exact some form of ad- 
visory opinion by statute, one has repealed the requirement, 
one has suffered its judicial impugnment to go unquestioned, 
and two still treasure it in the dark closets of supererogatory 
legislation, "unwept, unhonor'd and unsung." Only in Okla- 
homa has such a requirement been put to the test in the last 
twenty years, and there even the exiguous consultation per- 
mitted by the statute has been reduced to the vanishing point 
by judicial construction. It may, then, be stated as a settled 
principle of our constitutional law that the justices of the 
State supreme courts are under no obligation to render extra- 
judicial advice or assistance to the executive or legislative depart- 
ments, even though bidden to do so by legislative enactment. 
There is even some doubt as to whether they may constitu- 
tionally yield to importunities for such advice.^^ 

3" In re Opin. of the Judges, 8 Okla. Cr. 467. 

330 See Reply of the Judges, etc., 33 Conn. 586; In the matter of the 
AppUcation of the Senate, 10 Minn. 78; In re Board of Purchase and Sup- 
plies for State Institutions, 37 Neb. 425, per Norval, J.; Opin.s of the Jus- 
tices, etc., 64 N. C. 785, per Reade, Rodman and Settle, JJ.; and State v. 
Baughman, 38 Ohio St. 455. 



HISTORY or THE ADVISORY OPINION 79 



C. In Canada 
1. The Dominion. 

The historical development of the advisory opinion in 
Canada is very interesting and instructive for several reasons. 
We have here an example of a federal supreme court bound 
to advise the executive department in a great variety of cases. 
We have an unquestioned and expHcit enumeration of the cases 
wherein the obhgation exists. We have an authoritative and 
controlHng statement as to the effect of such opinions. Fur- 
thermore, the majority of the constituent member -states have 
incorporated the same practice into their constitutional systems. 
Of course, there are certain very important differences between 
the situation in the United States and that in Canada. The 
Canadian supreme court is the creature of the legislature, 
acting within section 101 of the British North America Act 
of 1867. Thus the legislature was, and is, in a position to define 
the duties and jurisdiction of that court, as long as it avoids con- 
flict with the other sections of the act. The provincial legis- 
latures are equally supreme by virtue of section 92, paragraph 
14, of the same act. It will be noted later that this practically 
eliminates the separation of powers argument from considera- 
tion. The judges are not even as free to discriminate as were 
their judicial ancestors in the mother country, at least since 
the end of the seventeenth century. 

The Dominion legislature first created a supreme court for 
the federation in 1875,^^^ and provided in the same act for the 
giving of advisory opinions to the governor-general in coun- 
cil. The clause covered any matter which the latter thought 
"fit" to refer.^^ There is evidence of judicial disapproval as 
early as 1879. In Queen v. Robertson,^^ Strong, J., says: 

331 38 Vic. c. 11. 

332 For the text of the provision see Appendix II. 

333 6 Can. S. C. R. 127. 



80 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

**In the case of private suitors, if a special case appears to be 
framed for the purpose of eUciting an opinion upon a question, 
the decision of which is not essential to determine the rights 
of the parties, the court will refuse to entertain it, and I see 
no reason why the same rule should not be appUed to a case 
in which the Crown is a party. As the case is presented to 
the court it appears that the officers of the Crown have arranged 
to pay the supphant, not damages, but a gratuity, in the event 
of the court being of the opinion that the Crown had no author- 
ity to grant the license in question. This is to invoke an ad- 
visory, not a contentious, jurisdiction, and such a jurisdiction 
. . . ought not to be exercised unless conferred by statute, 
which has not been done." But his brethren on the bench 
did not agree with him and he went on to express his opinion. 
Five references were made under the provision prior to 
1892,^ but the possibilities of the device and the important 
results of its frequent use were evidently overlooked. In fact 
in 1884 the legislature passed an act^^ which specially provided 
(s. 28) that the supreme court should determine, on reference 
from the governor-general, as to the competency of the legis- 
lature to pass "The Liquor Licence Act, etc." in whole or in 
part.^^^ And in his recommendation that certain questions be 
referred. Sir John Thomson, minister of justice, said (in 1889): 
"This provision which confers that power on your Excellency 
was undoubtedly intended to enable the Governor-General 

3'* In re New Brunswick Penitentiary, April, 1880; In re Canada Tem- 
perance Act of 1878, and County of Perth, Cass. Dig. 105; In re Canada 
Temperance Act of 1878, and County of Kent, Cass. Dig. 106; The Thrasher 
Case, Cass. Dig. 480; The Manitoba Railway Crossings Case. See Cameron, 
p. 267. 

335 47 Vic. c. 32. 

33« Idington, J., argues from this that s. 37 of the original Supreme 
Court Act did not authorize questions to be referred re the competence of 
the legislature to pass pending or possible bills. 35 Can. S. C. R. 581, 
at 596. But it seems more probable that the provision was either a super- 
fluity due to forgetfulness or an example of over-abundant caution. 



HISTORY OF THE ADVISORY OPINION 81 

to obtain an opinion from the Supreme Court of Canada in 
relation to some order which his Government might be called 
upon to make, or in relation to some action which his officers 
might be called upon to adopt. "^^^ 

More careful definition was obviously in order and in 1891 
the section was amended^^^ to cover "important questions of 
law or fact touching provincial legislation, or the appellate 
jurisdiction as to educational matters vested in the Governor 
in Council by the 'British North America Act, 1867,' or by 
any other act or law, or touching the constitutionahty of any 
legislation of the Parliament of Canada, or touching any other 
matter with reference to which he sees fit to exercise this power. " 
It was added that the opinions should be given "in like manner 
as in the case of a judgment upon an appeal to the said court. " 
Furthermore the statute required that the attorney-general 
of a province interested in any question should be notified of 
the reference and heard in argument, and provided that the 
court in its discretion might notify any persons interested in 
any question referred of the hearing, and such persons should 
be "entitled to be heard thereon;" or might require counsel 
to argue the case as to any interest which was unrepresented, 
at the government's expense. Finally it declared that opinions 
given, "although advisory only, shall, for all purposes of appeal 
to Her Majesty in Council, be treated as a final judgment of 
the said court between parties. "^^^ 

The first reference under this form of the provision seems 
to have been In re County Courts of British Columbia (1892). ^<^ 
It related to the constitutionality of certain legislation enacted 
in British Columbia and of a statute of the Dominion legisla- 
ture. Counsel appeared for the province and the Dominion. 
In the next case (1894), the justices were asked to construe 

337 12 Legal News, 286. 

338 By 54-55 Vic. c. 25, s. 4. 

339 For the text of the provision see Appendix II. 
3^0 21 Can. S. C. R. 446. 



82 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

the British North America Act, as well as certain Manitoba 
statutes, and to define the powers of the governor-general in 
a particular instance. Taschereau, J., participated in such a 
case for the first time, and expressed a doubt as to the constitu- 
tionahty of 54-55 Vic. c. 25, s. 4, on the ground that the court 
is made *'an advisory board of the federal executive, substi- 
tuted, pro hac vice, for the law oflScers of the Crown, and not 
performing any of the usual functions of a court of appeal, 
nay, of any court of justice whatever;" but since the point 
had not been raised and the answer would bind no one, he con- 
cluded to answer.^^ This is the first opinion from which an 
appeal was taken to the Privy Council^ and it is worthy of 
note that the very learned Lords^^ who dealt with the case 
there took no notice of Taschereau, J.,'s demurrer, merely 
recommending that the opinions of the supreme court be de- 
clared incorrect. But two of these same Lords^ joined a year 
later in an important dictum restrictive of the advisory opinion 
practice. The governor-general had referred eight questions 
concerning the power of provincial legislatures to pass pro- 
hibitory liquor laws, and asked specifically if the Ontario 
legislature had been within its powers in enacting 53 Vic. c. 
56, as explained by 54 Vic. c. 46.^^^ The supreme court answered 
No to all questions and an appeal was taken to the Privy Coun- 
Q{\si& xhe Ontario legislation was considered without question, 
but the Council prefaced their answers to the general questions 
with these words: "These differ from the question which has 

3« In re Certain Statutes of . . . Manitoba rel. to Education, 22 Can. 
S. C. R. 577. 

3« Brophy et al. v. Attorney-General of Manitoba (1895) A. C. 202. 

3" Lord Herschell, L. C, Lord Watson, Lord MacNaghten, and Lord 
Shand. 

^* Lord Herschell and Lord Watson. 

'** In re Provincial Jurisdiction to Pass Prohibitory Liquor Laws, 24 
Can. S. C. R. 17Q 

*** Attorney-General for Ontario v. Attorney-General for Dominion 
et al. (1896) A. C. 348. 



HISTORY OF THE ADVISORY OPINION 83 

already been answered in this respect, that they relate to 
matters which may possibly become Htigious in the future, 
but have not as yet given rise to any real and present contro- 
versy. Their Lordships must further observe that these ques- 
tions, being in their nature academic rather than judicial, are 
better fitted for the consideration of the officers of the Crown 
than of a court of law. The rephes to be given to them will 
necessarily depend upon the circumstances in which they may 
arise for decision. ... It must therefore be understood that 
the answers which follow are not meant to have, and cannot 
have, the weight of a judicial determination, except in so far 
as their Lordships may have occasion to refer to the opinions 
which they have already expressed in discussing the seventh 
question. "^^ Taschereau, J., referred to this dictum with 
approval in the Provincial Fisheries case,^^ where, too, he 
repeated his statement that the opinions given to the governor- 
general "bind no one, not even ourselves. "^^ On appeal, 

^"^ L.c. at p. 370. See also the words of the Judicial Committee in 
Attorney-General for Ontario v. Hamilton Street Railway Company et 
al. (1903) A. C. 524, an appeal from an ad\dsory opinion statute ia Ontario: 
"It would be inexpedient and contrary to the established practice of this 
Board to attempt to give any judicial opinion upon those questions. They 
are questions proper to be considered in concrete cases only; and opinions 
expressed upon the operation of the sections referred to, and the extent to 
which they are applicable, would be worthless for many reasons. They 
would be worthless as being speculative opinions on h>"pothetical questions. 
It would be contrary to principle, inconvenient and inexpedient that opin- 
ions should be given upon such questions at all. When they arise, they must 
arise in concrete cases, involving private rights; and it would be extremely 
unwise for any judicial tribimal to attempt beforehand to exhaust all possible 
cases and facts which might occiir to quahfy, cut do\\Ti and over-ride the 
operation of particular words when the concrete case is not before it." 
(at p. 529). 

'*8 In the matter of Jurisdiction over Provincial Fisheries, 26 Can. 
S. C. R. 444. 

"' "Our answers are merely advisory, and we have to say what is the 
law as heretofore judicially expounded, not what is the law according to 
our opinion. We determine nothing. We are mere ad\dsers, and the 



84 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

the Privy Council refused to answer questions in this same case 
concerning the rights of riparian owners, because the latter 
were not parties to the litigation.^^^ 

But the dictum of the Privy Council in 1896 only came 
to full fruition in 1905 and 1906. The governor-general 
referred to the supreme court questions concerning the right 
of the Ontario legislature to enact certain statutes, past and 
pending, and concerning the right of provincial legislatures in 
general to pass Sunday labor acts.^^^ One of the counsel who 
appeared questioned the jurisdiction of the court in his argu- 
ment. The majority of the court agreed that the hypothetical 
questions of a general nature proposed were not ''w^ithin the 
purview of the section." They admitted that questions as 
to the constitutionality of existing legislation were within the 
section, but claimed that the words '' touching any other mat- 
ter" should be considered ''as within the rule ejusdem generis ^^^ 
and might refer to administrative or departmental orders 
issued pursuant to a statute. However, since the practice 
had been for the supreme court, and the Privy Council as well, 
to answer questions similar to those under discussion, they 
would give their opinions. Sedgew^ick, J., dissented on the 
grounds that the amendment of 1891 was not intended to limit 
the governor's power of reference, and that the rule ejusdem 
generis did not apply (though even if it did, he thought the 
reference here was within that rule). Idington, J., dissents from 
both these views very forcibly. In a cogent argument of some 



answers we give bind no one, not even ourselves. The questions are of 
the nature of those upon which the Privy Council in the recent case made 
remarks that will, I hope, restrict in the future references such as the present 
one by the Department of Justice." Cf. the remarks of the same judge 
in the Prince Edward Island representation case, 33 Can. S. C. R. 594. 

"^ Attorney-General of Canada v. Attorneys-General for Ontario, 
Quebec and Nova Scotia (1898) A. C. 700. 

"^ In the matter of the Jurisdiction of a Province to Legislate Resp)ect- 
ing Abstention from Labor on Sunday, 35 Can. S. C. R. 58 L 



HISTORY OF THE ADVISORY OPINION 85 

length, he insists that there is no sound authority from prece- 
dent or statute to give opinions on speculative questions. He 
closes his refusal in these words: "The jurisdiction to pass 
upon proposed or only possible future legislation, such as the 
governing power of the people might never assent to, is one 
of so grave a character, fraught with such far-reaching conse- 
quences, and such a departure from the recognized principle 
of severing and keeping as distinct as possible the respective 
powers and duties of the legislative, executive and judicial 
functions of Government, that I would desire to see the power 
we are asked here to exercise distinctly and clearly conferred 
by Parliament, if it is to be conferred at all, rather than by an 
assumption of its existence on such slender basis as is alleged 
here to have expressed its existence." 

The legislature was not slow to give the learned justice the 
assurance asked, and at the same time dealt conclusively with 
the ejusdem generis argument. By 6 Edward VII c. 50, in 
addition to the questions enumerated in the 1891 statute, the 
governor in council was empowered to refer important ques- 
tions touching the powers of the Dominion or provincial legis- 
latures, "whether the particular power in question has been 
or is proposed to be executed," or touching "any other matter, 
whether or not in the opinion of the court ejusdem generis with 
the foregoing enumerations," and "any question touching 
any of the matters aforesaid, so referred by the governor in 
council shall be conclusively deemed to be an important ques- 
tion." This last provision is probably the result of practice 
in the United States, since there is no indication that the Cana- 
dian judges were disposed to test the magnitude of a question's 
importance. The present form of the advisory opinion clause, 
as included in the Supreme Court Act of 1906,^°^ is practically 
a re-enactment of the provisions of 1891, as amended by the 
statute of Edward VII. 

^2 R. S. C. 1906, c. 139, s. 60. See text in Appendix II. 



86 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

Still, under such an explicit enactment, there were rumbhngs 
of judicial unrest. In a reference as to the powers of the attor- 
ney-general's deputies in Alberta and Saskatchewan under the 
Criminal Code,^^^ Davies, J., says the first three questions 
practically request the justices to sit as a court of appeals 
over the judgment of the supreme court of Saskatchewan in 
The King v. Duff, and only answers with great reluctance under 
the imperative provisions of the statute. AngUn, J.,'s reply 
is to the same effect. Girouard, J., only yields because the 
opinion can have no legal effect; and the persistent Idington, 
J., doubts whether section 101 of the British North America 
Act is broad enough to permit the legislature to make the 
supreme court a ''court or commission of general inquiry," 
as is done in the act of 1906. Finally the constitutionaUty 
of that statute came squarely to an issue in 1910.^^ The 
governor's reference included both general and particular 
questions regarding the powers of provincial legislatures, under 
the British North America Act, to incorporate companies 
(especially insurance companies) and regarding the constitu- 
tionality of the Insurance Act of 1910 (Dominion). The counsel 
who appeared at the hearing protested against any considera- 
tion of the questions, arguing that section 60 of the Supreme 
Court Act of 1906 was ultra vires, and that previous opinions 
were all given in cases where everyone interested had consented, 
so that the question of constitutionaUty had never been raised. 
They claimed, too, that the provincial courts would feel bound 
as if the opinion were a judgment. Fitzpatrick, C. J., felt 
bound to answer, both by the statute and the precedents, 
subject to the right of the court ''to make all proper represen- 
tations if it appears to us during the course of the argument, 
or thereafter, that to answer such questions might in any way 

»•' In re Criminal Code, 43 Can. S. C. R. 434. 

••*In re References by the Governor-General in Council, 43 Can. 
S. C. R. 536. 



HISTORY OF THE ADVISORY OPINION 87 

embarrass the administration of justice." He states clearly 
that in his opinion the judges of the Canadian supreme court 
are the ofi&cial advisers of the executive, after the English 
model. Girouard, J., dissented from this, holding that section 
60 (1) b was ultra vires. Duff, Anghn and Davies, JJ., all 
agreed with the chief justice. The last mentioned justice 
thought that the statute was within the British North America 
Act, s. 101, since practically it made the justices an "additional 
court for the better administration of the laws of Canada." 
Idington, J., of course, dissented. Courts should not be forced 
to prejudge cases, he said, and when referred questions concerned 
matters in dispute between the Dominion and the provinces, 
to reply was like expressing an opinion to a possible litigant 
in advance. Moreover, by section 91 of the British North 
America Act, the Dominion Parliament had no power over 
subjects assigned exclusively to provincial legislatures. The 
administration of justice in the provinces had been assigned 
to them, and Parliament could only create a court of appeal, 
and courts to administer the laws of Canada. 

The provinces promptly appealed the question of jurisdic- 
tion to the Privy Council.^^^ Here the whole matter was 
carefully considered by Lords of great erudition,^^^ and the 
constitutionality of the statute was unanimously sustained. 
The elaborate argument of the appellants is exceedingly inter- 
estmg because of its bearing on the theory of advisory opinions,^" 
but is almost entirely irrelevant to the constitutionaUty of 
the act. It is for the most part merely a "commentary on 
the wisdom of such an enactment," emphasizing the possible 
perversion of justice in the operation of the act. But "the 

>** Attorney-General for Ontario v. Attorney-General for Canada (1912) 
A. C. 571. 

^«Earl Lorebum, L. C, Lord MacNaghten, Lord Atkinson, Lord 
Robson, and Lord Shaw of Dunfermline. 

^^It is thus summarized in the judgment: ''The argument on behalf 
of the provinces proceeded upon the following lines. They said that the 
power to ask questions of the supreme court sought to be bestowed . . . 



88 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

argument that to put questions is ultra vires, must be the same 
whether the principle is rightly or wrongly used." The Lord 
Chancellor admitted the possibility of abuse, with attendant 
evils, but did not think it imminent, because the answers 
were only advisory, and because the justices could qualify 
their replies if the questions did not admit of accurate answers 
or could "make the necessary representation to the Governor- 
General in Council." But even abuse did not import uncon- 
stitutionality. "What in substance their Lordships are asked 
to do is to say that the Canadian Parhament ought not to pass 
laws like this because it may be embarrassing and onerous to 
a Court, and to declare this law invalid because it ought not 
to have been passed. " In effect the ratio decidendi of the opin- 
ion of the Privy Council is that the presumption that the statute 
is constitutional has not been overcome by the argument as 
to desirability put forward by the appellants'. But incidentally 

by the impugned act, is so wide in its terms as to admit of a gross inter- 
ference with the judicial character of that court, and, therefore, of grave 
prejudice to the rights of the provinces and of individual citizens. Any 
question . , . can be put to the supreme court and they are required to 
answer it, with their reasons. * Though no direct effect is to result from the 
answer so given, and no right or property is thereby to be adjudged, yet, 
say the appellants, the indirect result of such a proceeding may be and will 
be most fatal. When the opinion of the highest Court of Appeal for all 
Canada has been given upon matters both of law and of fact, it is said it is 
not in human nature to expect that, if the same matter is again raised upon 
a concrete case by an individual litigant before the same Court, its members 
can divest themselves of their preconceived opinions; whereby may ensue 
not merely a distrust of their freedom from pre-possession, but actual 
injustice, inasmuch as they will in fact, however unintentionally, be biassed. 
The appellants further insist that although the Act in question provides 
for requiring argument, and directing that counsel shall be heard before 
the questions are answered, yet the persons who may be affected by the 
answers cannot be known beforehand, and therefore will be prejudiced 
without so much as an opportunity of stating their objections before the 
Supreme Court has arrived at what will virtually 1 o a determination of 
their rights." 



HISTORY OF THE ADVISORY OPINION 89 

the Lord Chancellor goes on to strengthen the presumption 
of constitutionality by reviewing the English practice of judicial 
consultation, and by pointing out that apparently the thought 
of unconstitutionality was not entertained by any of the learned 
Lords who had considered the six previous appeals from opin- 
ions rendered under the Canadian statute. 

So the advisory opinion will undoubtedly remain in the 
Canadian system until the Parhament decides that its use is 
unwise. There is no indication that Parhament is so minded 
at present. The device has been employed very sparingly, 
and the evil effects, if any, have not been apparent. I have 
been able to discover only eighteen references during a period 
of forty-one years. Of these, appeals were taken to the Judicial 
Committee of the Privy Council in seven cases. 

Before passing on to consider advisory opinions in the prov- 
inces, mention might be made of two other forms of extra- 
causal advice under Dominion legislation. The Railw^ay Act 
makes it a duty of the supreme court^^^ to give its opinion upon 
questions of law involved in any case stated by the board, 
whether ''of its own motion" or at the request of the governor 
in council or of a third party. The justices have given opinions 
freely under this section. Also section 61 of the Supreme 
Court Act of 1906 provides that the senate or house of commons 
may, by a rule or order, refer any private bill or petition to 
the court or any two of the judges, for an opinion thereon.^^^ 

^^"1. The Board may, of its own motion, or upon the application 
of any party, and upon such security being given as it directs, or at the 
request of the Governor in Council, state a case, in writing, for the opinion 
of the Supreme Court of Canada, upon any question which in the opinion 
of the Board is a question of law. 

2. The Supreme Court of Canada shall hear and determine the ques- 
tion or questions of law arising thereon, and remit the matter to the Board 
with the opinion of the Court thereon." 3 Edw. VII, c. 58, s. 43. See 
R. S. C. 1906, c. 37, s. 55. 

^^"The Court, or any two of the judges thereof, shall examine and 
report upon any private bill or petition for a private bill presented to the 



90 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

According to Cameron,^^^ only one bill has been referred under 
this section — the Bill to Incorporate the Christian Brothers.^^^ 
2. The Provinces, 

Seven of the nine provinces have adopted the advisory 
opinion,^^^ and in all of them, as in the Dominion, the pro- 
vision is, of course, statutory. In three of them the enactment 
antedated the first revision of the Dominion act on the same 
subject, for the advisory opinion statutes in Ontario, Nova 
Scotia and Manitoba are all dated 1890. By referring to 
Appendix II, it will be seen that the text is very much the 
same in all three statutes, and the improvements upon the 
Dominion act of 1875 evidently furnished the basis for the 
later amendments to that act. It would seem that one of these 
was the antetype of the other two, but I have been unable to 
ascertain which is earliest in point of time. The title of the 
Ontario statute is interesting as throwing some light on the 
chief purpose of the scheme. It is called ''An Act for expediting 
the decision of Constitutional and other provincial Questions." 
The scope of the permission to refer is very broad, covering 
any matter which the lieutenant-governor in council "thinks 
fit to refer," as in the 1875 Dominion act. But in the provin- 
cial acts further particularization has not taken place, no amend- 
ments having been made to the original statutes. In all three 
cases, the opinion, with reasons, is to be given "in like manner 
as in the case of a judgment in an ordinary action." Also 
they all provide that if the question relates to the constitu- 
tionality of a provincial statute, the attorney-general of 
Canada shall be notified, "in order to be heard if he sees fit;" 
and in general that at the discretion of the court, any person 
or persons interested in any question referred might be notified 

Senate or House of Commons, and referred to the Court under any rules or 
orders made by the Senate or House of Commons." R. S. C. 1906, c. 139, 
s. 61. 

'*" Supreme Court Practice, p. 268. 

3«il876. Cass. Prac. 59. 

^"^ See text of these provisions in Appendix H. 



HISTORY OF THE ADVISORY OPINION 91 

of the hearing, for the same purpose; and if any interests af- 
fected are not represented by counsel, the court may appoint 
counsel to act in their behalf, at pubHc expense. But the 
effect of the opinion given varies. In the statutes of Ontario 
and Manitoba, the opinion "shall be deemed a judgment of 
the court, and an appeal will lie therefrom as in the case of a 
judgment in an action." But in the Nova Scotia act, the 
opinion is declared to be advisory, and is to be treated as a 
final judgment of the court only for purposes of appeal to the 
Canadian supreme court or to the Privy Council. 

British Columbia followed closely in the steps of these 
three, enacting a statute in 1891, which differed from the 
Manitoba statute in only one important particular — there was 
no provision for the appointment of counsel to argue for interests 
not represented. The same omission occurs in the Quebec 
act of 1898; also here there is no provision for notifying the 
Canadian attorney-general in references connected with the 
constitutionaUty of provincial legislation. Also in section 4 
it is declared that the opinion is advisory only and cannot be 
appealed from. This is undoubtedly the result of Union Col- 
liery Company of British Columbia v. Attorney-General of 
British Columbia et al.,^^^ where Taschereau, J., held that no 
appeal would he to the Canadian supreme court from an 
opinion given by the supreme court of British Columbia under 
the statute; he declared there was no action, no parties and 
no controversy, and that the British Columbia legislature could 
not extend the jurisdiction of the Canadian supreme court 
by enacting that opinions given as in this case should be '' deemed 
a judgment. " Still Saskatchewan did not benefit by this de- 
cision, for the ''Act respecting the Decision of Constitutional 
and other Legal Questions," of 1901, is in all essential parti- 
culars identical with the Ontario act of 1890. The New 
Brunswick statute was passed in 1906. 

363 27 Can. S C. R. 637. 



92 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

Very little use has been made of the privilege granted by 
these statutes. I have found only four references in Ontario. 
In three of these,^^^ appeals were taken to the Privy Council, 
which considered them without hesitation.^^^ The fourth case^^ 
is interesting because of the careful examination of the advisory 
opinion act. The question referred concerned the construction 
of a section of the Ontario Medical Act, 1897 — did the words 
*'to practice medicine" cover cases where drugs and similar 
substances were not used? All of the judges were reluctant 
to answer because of the difficulty of making a categorical 
reply to so general a question; Meredith, J. A., also objected 
on the ground that the reference was practically an appeal 
from Reg. v. Stewart.^^"^ The majority repUed, in substance, 
that the phrase in question might cover such cases, but that 
each would have to be decided on its own merits. Moss, 
C. J. O., observes that in spite of the statutory declaration that 
such an opinion ''shall be deemed a judgment," it is really 
"for the information of the Lieutenant-Governor in Council" 
and is only advisory in character. 

But one case from British Columbia has come to my at- 
tention, the question as to the Coal Mines Regulation Act 
already mentioned.^^^ A single reference has been made in 
Nova Scotia, a reference in 1916 regarding the Nova Scotia 
Temperance Act, upon which argument has not yet been heard 
(January 29, 1917). The Attorney-General of New Brunswick 
informs me that no references for advisory opinions have been 



'** Attorney-General of Ontario v. Attorney-General for Dominion 
of Canada (1894) A. C. 189; Attorney-General for Dominion v. Attorney- 
General for Ontario (1898) A. C. 247; Attorney-General for Ontario v. 
Hamilton Street Railway Company et al. (1903) A. C. 524. 

^* Cf. Union Colliery Company of British Columbia v. Attorney- 
General of British Columbia et al., 27 Can. S. C. R. 637. 

3««In re Ontario Medical Act (1906), 13 Ont. L. R. 501. 

^' 17 Ont. R. 4. 

^* See p. 91 supra. 



HISTORY or THE ADVISORY OPINION 93 

made in that province, and I have discovered none in Quebec, 
Manitoba or Saskatchewan. 

In at least two provinces there is a scheme for testing the 
constitutionahty of legislation that might be mentioned in 
passing. It is provided both in Ontario^^^ and in Alberta^'^'^ 
that the supreme court shall have jurisdiction to entertain 
an action at the instance of either the attorney-general for 
the Dominion or the attorney-general for the province for 
a declaration as to the vaHdity of any statute, or any pro- 
vision in any statute (of the province), "though no further 
relief should be prayed or sought. "^^^ Very few apphcations 
have been made under these acts. An example of such an 
application in Ontario is Attorney- General of Canada v. Attor- 
ney-General of Ontario,^'^^ where the supreme court for the 
Dominion allowed an appeal from a declaration by the Ontario 
court.^^^ Also it is provided in section 113 of the Alberta 
Land Titles Act that whenever a question arises as to the 
registrar's duties under the act, or as to the construction or 
legal validity of any instrument, the registrar may refer the 
same to a judge of the supreme court, and the judge shall 
decide the question. 

D. In Other States 

One evidence of the strong Anglo-American influence in 
the Hawaiian Islands in the middle of the nineteenth century 
is the incorporation of an advisory opinion clause (on New 
England principles) in the constitution of 1852 (Article 88). 
This was repeated as Article 70 of the constitution of 1864 and 

3«9 Judicature Act, R. S. O. c. 51, s. 57 (2). 

"° Judicature Ordinance, s. 8 (6). 

3" Cf. N. J. Comp. Stat. IV, 4978, and 83 N. J. L. 303, for a case undet 
a somewhat similar statute, 

"2 33 S. C. R. 458. 

"^Cf. Union Colliery Company of British Columbia v. Attorney- 
General of British Columbia et al., 27 Can. S. C. R. 637. 



94 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

(with slight changes) as Article 70 of the constitution of 1887. 
It gave the king, cabinet or legislature power ''to require the 
opinions of the justices of the supreme court upon important 
questions of law and upon solemn occasions." Thayer^^^ says 
a number of opinions have been given under this clause, be- 
ginning with one of 1884.^'^^ 

A very interesting constitutional device is contained in 
the Colombian constitution of 1886. The president is given 
a qualified veto on all legislation, having the power to force 
repassage by two-thirds of the members of each house if he 
returns a bill with objections in from six to fifteen days (depend- 
ing upon the length of the bill). But if he objects on the ground 
that the bill is unconstitutional and if the legislature insists 
on its passage, the bill is to be referred to the supreme court, 
which has six days to decide upon its acceptability. If the 
decision favors the president's objections, the bill fails; if not, 
it must be sanctioned and promulgated by the executive.^^^ 
The people seem to have been satisfied as to the value of such 
an unusual arrangement, for the Panamans repeated it in 
their constitution of 1904.^^^ I have not been able to ascertain 
whether the supreme court is called upon to act under this clause 
very frequently or at all. 

Colombia is responsible for still another strange provision 
regarding the judiciary. Article 84"^ of the constitution of 
1886 gives the judges of the supreme court the privilege of being 
heard by the legislature ''in the discussion of bills relating to 
civil matters and judicial procedure." Three states have 
copied this clause, with some variations in the wording — Sal- 
vador (Constitution of 1886, Article 79), Honduras (Constitu- 
tion of 1904, Article 83) and Nicaragua (Constitution of 1905, 

"" Cases I, 176 n. 

"5 The Segregation of Lepers, 5 Haw. Rep. 162. 

"« For the text of the provision see Appendix III. 

3" Article 105. For the text of the provision see Appendix III. 

"* For the text see Appendix III. 



HISTORY or THE ADVISORY OPINION 95 

Article 71).^^^ All of these imitators, however, go even farther 
than Colombia, for they permit the judges to introduce or 
originate bills relating to the codes of the republic as well as 
as to be heard in the discussion of all such bills not coming from 
them. The desirabihty of such provisions will be considered 
in a later chapter. 

2^^ For the text of these provisions see Appendix III, 



CHAPTER II 
THE ADVISORY OPINION IN PRACTICE 

A. The Source of Interrogations 
The cases considered in the subsequent discussion include 
(unless otherwise stated) only the opinions rendered in the 
eight States of the Union where the advisory opinion has ex- 
isted under the constitution. The reports yield a total of four 
hundred and ten such opinions. Fifty-one of these are credited 
to Florida and South Dakota, where the governor alone has 
the benefit of the clause. The remaining three hundred and 
fifty-nine belong to States which permitted to the executive 
and legislative departments alike the right of judicial consulta- 
tion. In this group the legislative department is responsible 
for two hundred and sixteen opinions, the executive for one 
hundred and forty- three. The inequality of distribution is 
probably due to two causes. Since the firm establishment in 
the United States of the judicial power to declare acts of the 
legislature to be null and void because of failure to conform 
to the constitution, it has become increasingly evident that it 
would often be very desirable to ascertain in advance of the 
passage of a measure, how the supreme court will look upon its 
vaHdity if called upon to apply it. Questions with this end 
in view naturally issue from the legislature while the bill is 
under consideration. A majority of the legislative questions 
are of this nature, and many of the executive questions as well, 
for the governor has often sought advice from the supreme 
court before signing or vetoing bills presented to him. Of 
the three hundred and fifty-nine opinions, one hundred and 
twenty-eight were in response to questions concerning pending 
or possible legislation. The second cause is the fact that the 



THE ADVISORY OPINION IN PRACTICE 97 

executive department has at hand a more prompt and conve- 
nient adviser in ordinary situations in the person of the attorney- 
general. The legislature naturally prefers the opinion of those 
officials, who will have to pass finally upon the matter in ques- 
tion, whose hostiUty to a project will be fatal in spite of legisla- 
tive approval. The governor feels the same way in important 
and difficult affairs that may possibly come before a court 
later, but in most of the cases that call for executive decision 
and action, the questions of law are elementary, and it is almost 
certain that the executive action will be final. 

A more minute examination of the initiation of inquiries 
in some one State may be of interest. Colorado affords the 
best opportunity for detailed investigation in this as in other 
particulars, because of the concentration of a relatively large 
number of cases within a few decades. In that State there have 
been sixty-nine legislative inquiries, thirty-six emanating from 
the senate, thirty-two from the house of representatives, and 
one from the general assembly. Six of these are questions deal- 
ing with the advisabihty or possibiUty of contemplated legisla- 
tion which apparently had not yet been introduced. Fifty- 
eight are questions involving the constitutionahty of bills 
actually in course of passage. In thirty-six of these sixty-four 
cases, I have been able to discover from house and senate 
journals, the immediate interrogators. In one early case the 
bill was referred back to the committee in charge with instruc- 
tions to ask the supreme court for its opinion.^ There are six 
cases where the committee in charge, or some member thereof, 
proposed the resolution caUing upon the justices for their 
opinion, without any prompting.^ Senators or representatives 

1 In the matter of the Constitutionality of HB. No. 18, 9 Colo. 623. 

'In the matter of the Constitutionahty of SB. No. 76, 9 Colo. 623; 
In the matter of HB. No. 231, 9 Colo. 624; In the matter of the Constitu- 
tionahty of HB. No. 270 and SBB. No. 69 and No. 106, 9 Colo. 635; In 
the matter of the Constitutionahty of Sec. 9, of HB. No. 122, 9 Colo. 639; 
In re HB. No. 238, 12 Colo. 337; In re Annexation and Consolidation of 
School Districts, SB. No. 9, 26 Colo. 136. 



98 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

having a local interest in the bill under suspicion are responsible 
for three opinions. But in the great majority of instances, 
the interrogating resolution is introduced either by the member 
who introduced the bill under discussion (fifteen cases), ^ or by 
the judiciary committee, usually following the directions of 
the house (eleven cases).* The former of these two methods 
is the favorite modus operandi in recent years. These results 
appear to corroborate the complaint registered by O. F. A. 
Greene in ISW that "the supporters of a measure, in order to 
escape the argument of unconstitutionahty by their opponents, 
seek such opinions, hoping for a favorable response." This 
particular criticism, intended as an objection, is unreasonable, 
for the chief value of the advisory opinion to legislatures is 
in ascertaining the unconstitutionality of a measure before 
placing it upon the statute books; and when the question of 
constitutionality is raised in debate already, there is no reason 
why the sponsor of the bill should not ^ be the author of an in- 
quiry regarding its constitutionality. Indeed he may be acting 

3 In re HB. No. 165, 15 Colo. 593, 595; In re Bounties, 18 Colo. 273, 
In re Extension of Boundaries of the City of Denver, 18 Colo. 288; In re 
Amendments of Legislative Bills, 19 Colo. 356; In re HB. No. 203, 21 Colo. 
27; In re a Bill Providing that Eight Hours shall Constitute a Day's Labor, 
21 Colo. 29; In re HB. No 107, 21 Colo. 32; In re ConstitutionaHty of SB. 
No. 293, 21 Colo. 38; In re Constitutionality of an Act, 21 Colo. 46; In re 
Consolidation of School Districts, SB. No. 23, 23 Colo. 499; In re HB. No. 
99, etc., 26 Colo. 140; In re SB. No. 142, etc., 26 Colo. 167; In re HB. No. 
495, etc., 26 Colo. 182; In re House Resolution No. 10, 50 Colo. 71; In re 
Senate Resolution No. 4, 54 Colo. 262. 

4 In the matter of HB. No. 38, etc., 9 Colo. 631; In re SR. Relating to 
the Appropriation of Moneys, etc., 12 Colo. 287; In re HR. Relating to 
HB. No. 116, 12 Colo. 289; In re SR. Relating to SB. No. 1, 12 Colo. 290; 
In re SR. Relating to SB. No. 31, 12 Colo. 340; In re HR. Relating to HB. 
No. 218, etc., 12 Colo. 359; In re HR. Relating to HB. No. 349, 12 Colo. 
395; In the matter of the Constitutionality of SB. No. 65, 12 Colo. 466; 
In re HR. No. 25, 15 Colo. 602; In re Inheritance Tax, HB. No. 122, 23 
Colo. 492; In re SB. No. 27, etc., 28 Colo. 359. 

* See p. 50 supra. 



THE ADVISORY OPINION IN PRACTICE 99 

on the recommendation of a committee, as in 21 Colorado 27. 
In any case if the house deems the inquiry unnecessary, the 
resolution can easily be defeated.^ It is not easy to verify the 
accuracy of Greene's observation^ that "sl legislator who finds 
himself in a dilemma of either favoring a measure against his 
judgment or of making dangerous enemies against his own pet 
schemes, seeks a passage of escape by thus shouldering the re- 
sponsibiUty upon the court.'' Certainly it does not apply to 
the fifteen opinions soHcited by introducers of bills. But it 
may apply to the eleven cases referred by the judicial committee 
which always acted at the request of the house in committee 
of the whole, so that the real author of the resolution is not dis- 
coverable. However, as the supreme court did not declare 
a bill unconstitutional in a single one of these eleven cases, it is 
certain it did not relieve many legislators from facing the judg- 
ment of their constituents. In the sixteen cases where the 
supreme court has pronoimced a proposed measure unconstitu- 
tional, there are seven interrogatories from the author of the 
measure, four from the committee in charge and one from a 
member whose district was affected — all probably sincere and 
not for political effect. 

B. Nature OF Questions 

The subject matter of the advisory opinions rendered in 
the United States covers a great variety of topics in both public 
law and private law. An attempt has been made in this section 
to bring order out of the heterogeneity by classifying the topics 
in five groups as follows: (1) The Legislative Department; 
(2) The Executive Department; (3) The Judiciary; (4) Suf- 
frage and Elections; (5) Miscellaneous Matters. Of course, 
these divisions are not mutually exclusive, and one question may 
fall within two or even more groups and consequently may be 

' Such a resolution was rejected, for example, in the matter of HB. No. 
14 in 1889. HJ. 1889, 360. 
^The Nation, Vol. 50, 50. 



100 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

referred to below in more than one place. However, it will 

be endeavored to determine the class to which a case belongs 

by the element which receives the most emphasis or which is 

the most necessary to the inquiry. It must be remembered, 

too, that the same reference often comprises several different 

questions. 

1. The Legislative Department 

a. Composition of the Legislature. These cases^ fall into 
three subdivisions: questions concerning the legislative dis- 
tricting of a State or the apportionment of members of the 
legislature, questions regarding the quahfications for member- 
ship in the legislature, and questions as to the regularity of 
elections. In the first of these, there are thirteen opinions. 
The earliest one was rendered by a Massachusetts court in 
1811,^ in reply to an inquiry as to whether towns could count 
aUens, as ratable polls, in determining the number of represen- 
tives to which they were entitled. The New Hampshire court 
in 1838^° was asked to deal with almost the same question. In 
both cases it was declared that HabiUty to taxation was the 
criterion. The Massachusetts justices have given their opinion 
upon the right of representation of new towns,^^ and as to what 
apportionment appHed during a certain transition period.^ 
The nine other cases deal with the constitutional duties of the 
legislature in the matter of apportionment. Three are in 
Massachusetts,^^ three in Maine,^^ and three in Colorado.^^ 

* Except a single extra-constitutional case on the tenure of members 
of the legislature — Opinions of the Justices of the Supreme Court, etc., 
64 N. C. 785. 

9 Opin. of Justices, 7 Mass. 523. 

10 Opinion, 8 N. H. 573. 

" Opin. of Justices, 6 Cush. 575. 

" Opin. of the Justices, 157 Mass. 595. 

"Opin. of Justices, 10 Gray, 613; Opin. of Justices, 142 Mass. 601; 
and In re Opinion of the Justices, 220 Mass. 609. 

"Opin. of Justices, 3 Me. 477; Opin.s of the Justices, 18 Me. 458; and 
Opin. of Justices, Z2> Me. 587. 

"Veto Power — Special Session of General Assembly — 9 Colo. 642; 



THE ADVISORY OPINION IN PRACTICE 101 

In this list of thirteen, the justices answered without objection 
in every case, except for a partial refusal in 18 Maine, 458. 
But there are two outright refusals in each of the other groups. 
The general question of the ehgibihty of naturalized citizens 
to the house of representatives was readily answered,^^ but al- 
most the same court dechned to express any opinion as to the 
eUgibiHty of a special justice of a municipal, district or pohce 
court, or as to whether the election of such a justice to the 
legislature would vacate his judicial office,^^ and a Maine court 
followed their example in 1901 in a very similar reference 
regarding fish and game commissioners and trustees of State 
institutions.^^ In the third group, the two refusals were in 
response to separate inquiries by the senate and house of repre- 
sentatives regarding the same question.^^ The governor and 
council had rejected votes for certain senatorial candidates in 
two districts because of irregularities, and had declared other 
candidates elected; and the senate had subsequently ratified 
this action. The justices refused to express an opinion upon a 
completed act of the executive at the request of the legislative 
department, as amounting to mere criticism of a coordinate 
branch of the government, and added that the action of the 
senate on the election of its members is conclusive. Then there 
are three opinions in Massachusetts^^ deahng with the electoral 
rights of towns. Finally there are seven opinions in Maine, 
delivered upon four separate occasions. The question put in 
6 Maine, 486, was practically the same as in 15 Massachusetts 
536, viz., if by majority vote a town having the right to elect a 

In the matter of HR. re Constitutionality of Legislature Redistricting State, 
etc., 12 Colo. 186; and In re SR. Relating to Constitutionality of Proposed 
Reapportionment Bill, 12 Colo. 187. 

16 Opin. of Justices, 122 Mass. 594. 

" Opin. of Justices, 122 Mass. 600. 

18 Opin.s of the Justices, 95 Me. 564. 

19 Opin. of the Justices, 56 N. H. 570; Opin. of the Justices, 56 N. H. 574. 
"Opin. of Justices, 15 Mass. 536; Opin. of Justices, 3 Pick. 517; and 

Opin. of Justices, 23 Pick. 547. 



102 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

representative waives that right, is the minority bound by such 
action? (The Maine house of representatives appended a 
similar question as to waiver by a majority of towns in a dis- 
trict). The Massachusetts justices thought the right to elect 
was corporate in character, and consequently the vote of the 
majority was binding on all. This opinion (as to single towns) 
met the approval of two of the Maine justices, but Preble, 
J., distinguished between the wording of the Massachusetts 
and Maine constitutions and held that in the latter state, the 
right was individual, and the house of representatives acted 
in accordance with this dissenting opinion. In 6 Maine, 514, 
there is an opinion as to the formalities necessary in an election 
by the two houses acting jointly to supply deficiencies in the 
senate, and this is approved in 7 Maine, 483. The subject mat- 
ter of 35 Maine, 563, is similar. The three cases of 1880 deal 
with the powers of the governor and council as to returns on 
elections to the legislature. ^^ 

From the twenty-nine cases reviewed in this section, cer- 
tain rules may be readily deduced. Under an advisory opinion 
clause, the justices usually are wiUing to give advice to either 
house of the legislature in matters pertaining to (1) the deter- 
mination of the number of representatives to which a town 
or district is entitled, (2) the general qualifications of candidates 
for election to either house (?), (3) the regularity of elections 
of members to either house. But if the authority of precedent 
is to prevail, there are several necessary qualifications to these 
rules. (1) Opinions should not be given upon questions of 
fact which have been duly determined by the legislative de- 
partment.^ In extreme cases this may lead to a difficulty, 

2^ Questions Submitted, etc. 70 Me. 560; Statement and Questions 
Submitted, etc. 70 Me. 570; Statement and Questions Submitted, etc. 
70 Me. 600. 

22 Opin.s of the Justices, 18 Me. 458. In Opin. of the Justices, 33 Me. 
587, the court, assuming the facts as stated in the inquiry, passed upon the 
competence (a question of law) of an earher legislature to enact a certain 
law. 



THE ADVISORY OPINION IN PRACTICE 103 

as in 70 Maine, 570, and 70 Maine, 600, where in order to decide 
which of two legislatures was lawful, the justices had to decide 
which of two statements of facts was correct. (2 ) An opinion 
should not be given to the legislature upon a matter which 
rests in the discretion of the executive; whether action has been 
taken or not.^^ These two exceptions are supported by good 
reasons and are in hne with principles announced in advisory 
opinions on other questions, but there are two alleged exceptions 
which are questionable. (3 ) In 95 Maine, 564, a majority 
(five) of the justices dechned to answer a question of law, on 
the ground that, the legislature having already adjourned, the 
occasion was not a "solemn" one as to that body, and an opinion 
for the guidance of a future house would be an unwarrantable 
interference with its right to be judge of the elections and 
qualifications of its members. (4) The refusal in 122 Massa- 
chusetts, 600, was based on the grounds that the question 
involved could not be affected by legislation, and might come 
before the court judicially. The reasoning in these two cases 
is not founded upon a sound theory of the function of the ad- 
visory opinion or a fair construction of the constitutional clause 
in those States. Each house of the legislature is of course the 
final judge as to the elections and qualifications of its members, 
but in arriving at a decision it is entitled to the advice and 
assistance of the justices of the supreme court on points of law. 
As this counsel is purely advisory ,2'' it is difficult to see 
why an opinion for the guidance of a future legislature is an 
intereference with any of its rights. As the minority in 95 
Maine, 564, point out, it may often be necessary and quite 

2^ Veto Power — Special Session of General Assembly — 9 Colo, 642 
Opin. of the Justices, 56 N. H. 570; Opin. of the Justices, 56 N. H. 574. 

2* The justices went too far in 7 Me. 483, when they said the decision 
and proceedings in the senate "will, of course, be in accordance with the 
constitution, as understood and construed by the court in their opinion 
dehvered in answer to your questions, in connection with their former 
opinion, respecting the constitutionality of the convention and its pro- 
ceedings. " 



104 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

practical to obtain opinions beforehand so as to avoid errors, 
and opinions have, in not a few cases, have given after the 
adjournment of the interrogating legislature. ^^ This argument 
prevailed in 103 Maine, 506, where all the justices but one^® 
returned opinions to questions received after the legislature 
adjourned. As to (4) supra, the reasons given for refusal 
to answer seem to involve incorrect statements. The questions 
referred might well be affected by legislative action, as a con- 
stitutional amendment touching the eligibility of the justices 
mentioned would have to be initiated by the general assembly .^^ 
Also, the question as to eligibility could scarcely come before 
the court judicially if, through the assistance of the justices, 
the house of representatives should once pass upon it, since 
this decision is final. 

Among the twenty-nine cases on the composition of the 
legislature, are three where the inquiry came from the executive 
department.2^ All are in the same State, and are so unsatis- 
factory as to make generalization undesirable. It must be 
admitted that the justices were very generous in their answers 
on these occasions. The questions in 70 Maine, 560, all have 
to do with executive duties in counting the votes for members 
of the legislature, and are quite within the advisory opinion 
provision. But the questions in the other two opinions seem 
to concern the executive department very httle; yet all were 
answered save two which could only be decided by the senate. 
These last cases are nearly a century old and quite possibly 
might not be followed at the present time. The Canadian 
supreme court has given two opinions on the right of the provin- 
ces to representation in the House of Commons.^^ 

^ See list in Minority Opinion in 95 Me. 564. 
*' Three were the minority justices of 95 Me. 564, 
" Const. Amendment IX. 

" Opin. of Justices, 6 Me. 514; Opin. of Justices, 7 Me. 483; and Ques- 
tions Submitted, etc. 70 Me. 560. 

" In the matter of the Representation in the House of Commons, etc. 



THE ADVISORY OPINION IN PRACTICE 105 

b. Organization and Procedure. There are but three in- 
stances of questions concerning the organization of a legislative 
body. The first is a case of unusual difficulty, which is unique 
in the reports and probably could not arise again. An extra- 
ordinary session of the Florida legislature, summoned in 1868 
for a particular purpose, started impeachment proceedings 
against the governor. The lieutenant-governor claimed to act 
as governor, but the latter kept possession of the executive 
offices and asked the supreme court whether the impeachment 
proceedings were vahd, alleging (inter at.) the lack of a quorum 
in the senate. The justices felt bound to reply (under the 1868 
form of the Florida clause), but recognized that "to answer this 
communication is, therefore, pro tanto, a recognition of its writer 
as the Constitutional Governor of Florida — to decline to answer 
it, is no less than a refusal so to recognize." However, they 
avoided passing upon the competence of a special session to 
impeach, by concluding that there was not a quorum in the 
senate.^^ Later a regular session treated the proceedings of 
the special session as void.^^ The other two cases on organiza- 
tion deal with the speakership. In 1891, a dispute in the Colo- 
rado house of representatives as to the selection of standing 
committees^^ culminated in an ouster of one speaker and the 
election of another. The governor promptly asked the justices 
of the supreme court whether a speaker could be summarily 
removed in that way, basing his right to an answer on the 
necessity of communicating with the presiding officer of the 
house, and of passing upon biUs with his signature. The 
justices hesitated to give the governor an opinion upon a ''mat- 
ter exclusively pertaining to the legislative department," 



33 Can. S. C. R. 475; In the matter of the Representation of Prince Edward 
Island, etc., 33 Can. S. C. R. 594. 

30 In the matter of the Executive Communication, etc., 12 Fla. 653. 

3^ Baldwin, American Judiciary, p. 49. 

'^SeeHJ. 1891, 15, 27, 114-115. 



106 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

but concluded the case was within the advisory opinion clause, 
and declared the speaker had been properly removed.^^ It is 
not easy to reconcile the opinion just given with the third case.^* 
There the Heutenant-governor-elect having failed to qualify, 
his predecessor announced his intention to hold ofi5ce until a 
successor should be elected. The senate chose a presiding 
officer pro tempore, and then asked the advice of the supreme 
court as to the status of the lieutenant-governor.- A majority 
refused to answer for the reason that it would "involve a deter- 
mination of private rights in an ex parte proceeding," and 
observed that the acts of the Heutenant-governor as an officer 
de facto would unquestionably be vaHd, and that they were 
not authorized "to answer questions propounded to the end 
that solemn occasions may not arise." Of course the first 
of these reasons did not apply to 15 Colorado 520, but why would 
the second not have been a good reply to the governor? Or 
why, if the answer in 15 Colorado, 520, was properly given, is 
not the dissenting argument of Hill and Scott, JJ., in 54 Colorado, 
166, perfectly good, viz., the necessity of knowing whose acts 
to recognize as the acts of the legal presiding officer made the 
question important and the occasion solemn, and that it was 
a "question of grave public concern, compared with which 
the private right sinks into insignificance."^^ 

The opinions classified as relating to procedure (thirty-two in 
number) are, for the most part, upon various questions relating 
to the passage of bills. ^^ Five of them have to do with the time 

^^ In re Speakership of the House of Representatives, 15 Colo. 520. 

3* In re Interrogatories of the Senate, 54 Colo. 166. 

^ Cf. the Majority Opinion in In re SR. No. 10 Concerning Governor- 
ship Contest, 33 Colo. 307, which was ex parte as far as the supreme court 
was concerned. 

^ Except Opin. of the Court, 63 N. H., 625, where the house of repre- 
sentatives inquired as to the operation of a statute providing that notice 
of a petition to the legislature might be submitted before the beginning of a 
session; and Opin. of lustices, 18 R. I. 824, where the house asked a question 
as to the power of the senate to adjourn for more than two days. 



THE ADVISORY OPINION IN PRACTICE 107 

limit imposed upon the governor in his consideration of bills 
submitted for approval.^ '^ Six are inquiries as to the majority- 
necessary for action upon certain kinds of bills or clauses or 
for the repassage of a bill over the governor's veto. In three 
of these an opinion was refused — not, however, because of the 
nature of the question. In In re Construction of Constitution 
(3 S. D. 548) and In re Opinion of the Justices (208 Mass. 614) 
the court's principal objection was that the advice was not 
sought for the benefit of the body making the interrogation. 
In In re SB. No. 416 (45 Colo. 394), the only valid objection 
adduced was that the constitutional expiration of the session 
in three days did not permit time for a satisfactory consideration 
of the question.^^ In In re Bounties to Veterans (186 Mass. 
603) the court avoided the question of majority by declaring 
that the bill was unconstitutional SLnywsiy. In the two re- 
maining cases the question was answered without hesitation.'^ 
Then there are fifteen opinions deahng with the form or content 
of proposed legislation. In three, *^ bills are disapproved as 
unconstitutional, because not passed by both houses in the 
same form. The nature of amendments permitted is passed 
upon in three cases. ^^ In In re General Appropriation Bill 

"Opin. of Justices, 3 Mass. 567; Opin. of Justices, 99 Mass. 636; 
Opin. of Justices, 135 Mass. 594; Opin., 45 N. H. 607; In the matter of 
Senate Resolution, etc., 9 Colo. 632. 

3* The other reason given in this case that legislation was no longer 
pending after a final vote in both houses does not square wdth other cases 
in the same state. Cf. In re SR. Relating to the Recall of Bills, etc., 9 
Colo. 630; In the matter of SR., etc., 9 Colo. 632; In re SR. Relating to SB. 
No. 45, etc., 12 Colo. 339; and In re HR. Relating to HB. No. 218, 12 Colo. 
359. Surely legislation is not completed within the rule of In the matter 
of the ConstitutionaHty of SB. No. 65, 12 Colo. 466, and In re HR. No. 25, 
15 Colo. 602, as to existing statutes, while it lacks the executive signature 
or may be duly repassed over his veto. 

39 In re Emergency Clause, 18 Colo. 291; In re SR. No. 9, 54 Colo. 429. 

40 Judicial Opin., 35 N. H. 579; Opin. of the Justices, 52 N. H., 622; 
In re Opin. of the Justices, 76 N. H. 601. 

« In the matter of HB. No. 231, 9 Colo. 624; In re Amendments of 
Legislative Bills, 19 Colo. 356; In re HB. No. 250, etc., 26 Colo. 234. 



108 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

(16 Colo. 539) an opinion is given as to the effect of omitting 
an emergency clause, and in In re Advisory Opinion (43 Fla. 
305), an opinion as to the absence of the enacting clause. In 
In the matter of the Executive Communication (14 Fla. 283) 
and In the matter of the Executive Communication (14 Fla. 
285), the governor questioned the constitutionaUty of laws 
because they dealt with more than one subject, and the court 
agreed with him. The same rule is the occasion for an opinion 
in In re Constitutionahty of an Act (21 Colo. 46). The opinion 
of In re Governor's Proclamation (19 Colo. 333) covers the 
scope of legislation permitted to a special session. The ques- 
tions in the other four (in one of which the opinion is extra- 
constitutional),^^ relate to the form or manner of submission 
of initiated and referred measures; the Colorado court refused 
to answer as the measures had aheady been adopted by the 
people. Finally, there are three opinions containing questions 
of a miscellaneous character — the power of the legislature to 
recall a bill from the governor,^ the constitutionaUty of a senate 
rule on readings,^ and a general question as to the constitution- 
ality of the passage of a certain bill.^^ 

It may be taken as settled that the justices will (under an 
advisory opinion clause in the constitution) give their opinions : 
(1) To the legislature on questions (a) as to the effect of the 
governor's acts or omissions regarding bills submitted for his 
approval, at least when there is doubt as to the necessity for 
further legislative action; (b) as to whether an exceptional 
majority is required for certain measures or clauses, at any rate 
if the information may conceivably be of use in connection 

«In re Opin. of Supreme Court, 29 R. I. 611; In re HR. No. 10, 50 
Colo. 71; In re SR. No. 4, 54 Colo. 262; In re Senate File 31, 25 Nebr. 864. 

" In re SR. Relating to the Recall of Bills, 9 Colo. 630. 

"In the matter of the Constitutionality of Senate Rule No. — (sic), 
9 Colo. 641. The resolution for this opinion was the first business after the 
governor's message in the legislature of 1887 — SJ. 137, 159 — so the re- 
quest is probably the first one made under the advisory opinion amendment. 

« In re HR. No. 30, 10 S. D. 249. 



THE ADVISORY OPINION IN PRACTICE 109 

with a particular bill;*^ (c) as to the nature of amendments 
which can constitutionally be proposed in one house to a bill 
originating in the other. (2) To the executive department, on 
questions (a) alleging the unconstitutionality of a law on the 
ground that it did not pass both houses in the same form; (b) 
as to the effect of the absence of certain clauses of a procedural 
nature — in either case, semble, whether the information is 
needed in the exercise of the veto power, or in carrying out the 
provisions of a completed enactment. 

Before leaving this section, it might be worth while to men- 
tion the New Jersey statute,^^ which makes available to the 
executive department a summary method of securing action 
by the supreme court upon laws which are possibly void because 
of procedural defects. An example of a petition under this act 
may be found in 83 New Jersey Law, 303, where the chief 
justice declares there is no doubt the legislature could confer 
such jurisdiction on the supreme court, as the question of con- 
stitutionality is always a judicial one, and the people have a 
right to know "whether a given law which appears upon the 
statute books is one which they are obHgated to obey."*^ 

^ In re Opin. of the Justices, 208 Mass. 614, Perhaps this is what the 
court meant in In re SB. No. 416, 45 Colo. 394, but it was not applicable 
to that case, for the bill there might easily have come before the legislature 
again upon an executive veto. 

*'' "If, at any time within one year after any law or joint resolution 
shall have been filed by the Secretary of State, . . . the Governor . . . 
shall have reason to believe that (it) was not duly passed by both houses 
of the Legislature, or duly approved as required by the Constitution of this 
State, he may, in his discretion, direct the Attorney-General to present a 
petition to the Supreme Court of this State, setting forth the facts and cir- 
cumstances, and praying that the said law or joint resolution may be decreed 
to be null and void. . . , The said court shall have jurisdiction and power 
to proceed in a summary way and inquire into the facts and circumstances 
alleged; . . . and after a full hearing and consideration, , . . may dis- 
miss the said petition ... or decree (the law or joint resolution) or any 
part thereof to be null and void." 1873, Comp. Stat. IV, p. 4978. 

*• This reasoning would not be approved by the Colorado courts which 
refuse to pass upon the constitutionality of completed legislation except 
in regular cases inter partes. See p. 197 infra. 



no DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

c. Financial Powers and Duties of the Legislature. For the 
sake of convenience, cases belonging here will be hsted under 
three heads: (i) Taxation, (ii) Appropriations, (iii) Miscella- 
neous. The number in each class is relatively large and the 
cases are among the most important that the courts have 
dealt with in this extra-judicial manner. In Colorado particu- 
larly, the history of pubhc finance would be decidedly incomplete 
without an examination of the advisory opinions connected 
with that subject. In all the States, the judges have shown a 
tendency to generosity in answering financial questions, and 
the few refusals that are recorded (twelve out of a total of 
eighty-one cases) are for the most part quite reasonable and 
not because of the subject matter of the question. 

(i) Taxation. Opinions have been given without objection 
on such questions as the power of the legislature to tax person- 
alty at a different rate from realty,'*^ to tax shares, stocks, 
credits or other special forms of personalty ,^^ to tax incomes 
generally ,^^ to tax inheritances,^^ to tax residents on land ceded 
to the United States for military purposes,^ to tax persons 
living in a particular locality for educational purposes,^'* to tax 
sales of corporation shares,^^ to tax the interest from securities 
and exempt the securities,^^ to levy a special tax for road 
repairing,^^ to tax towns excluded temporarily from representa- 
tion,^^ to tax generally under a school fund act,^^ to impose a 

^^In re Opin. of the Justices, 195 Mass. 607; In re Opin. of the Jus- 
tices, 208 Mass. 616. 

"In re Opin. of the Justices. In re Taxation, 220 Mass. 613; In re 
Opin. of the Justices, 76 N. H. 588. 

" Opin. of the Justices, 53 N. H. 634. 

" In re Inheritance Tax, HB. No. 122, 23 Colo. 492. 

" Opin. of Justices, 1 Mete. 580. 

" Opin. of Justices, 5 Mete. 587. 

" Opin. of the Justices, 196 Mass. 603. 

" In re Opin. of the Justices, 77 N. H. 611. 

" An Opin. Delivered by the Court, etc., 4 N. H. 565. 

"Opin.s of the Justices, etc., 18 Me. 458. 

" Opin.s of the Justices, etc., 68 Me. 582. 



THE ADVISORY OPINION IN PRACTICE 111 

different rate of taxation upon unincorporated places from that 
applied to corporate,^° to lay an excise tax on railroads,^^ to 
levy a deficiency tax,^^ and to impose a tax on certain lands 
at the end of a period of constitutional exemption. ^^ In all 
these cases^ the legislature was the source of interrogation. 
Similar questions met with refusals in four instances. A 
Connecticut court decHned to advise the legislature as to its 
power to tax the income from United States bonds, on the con- 
stitutionally safe basis that an answer would involve an ex parte 
adjudication of private rights which the judiciary was not 
authorized to make.^^ The refusal, in South Dakota,^^ to deal 
extra- judicially with the legislative power to tax interstate 
carriers, after the United States circuit court of appeals had 
aheady dealt with the matter in regular proceedings, because 
the occasion could scarcely be a solemn one when the opinion 
would be so inconclusive, is quite reasonable, if it is once ad- 
mitted that the justices are entitled to pass upon the solemnity 
of occasion s.^^ Perhaps the same may be said of the position 
of the Massachusetts judges^ ^ that the mere possibihty that 
legislation may be introduced upon a particular subject does 
not make the occasion of a question thereupon a solemn occasion 
within the meaning of the advisory opinion clause. But it is 
difficult to justify the refusal of In re Opinion of the Justices 
(76 N. H. 597). There the justices feebly argue that since 
they cannot agree, in the time available, upon the question of 
gradation involved in an inheritance tax biU submitted to them, 
"it is entirely immaterial to which side of the question the major- 

«o In re State Taxation, 97 Me. 595. 

«i In re Railroad Taxation, 102 Me. 527. 

^' In re Limitation of Taxation, 3 S. D. 456. 

" In the matter of the Constitutionahty of HB. No. 18, etc., 9 Colo. 623. 

" Except, of course. In re Limitation of Taxation, 3 S. D. 456. 

" Reply of the Judges of the Supreme Court, etc., 3tS Conn. 586. 

«« In re Opin. of the Judges, 34 S. D. 650. 

'^ See pp. 161-77 infra. 

"8 In re Opin. of the Justices, 217 Mass. 607. 



112 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

ity may incline." This can be a valid reason for declining 
an answer only on the assumption that it is the opinion of the 
court as a whole that is desired. But Article 73 of Part II 
in the Constitution of 1902 says "the opinions of the justices 
of the superior court;" and, as a matter of fact, although in- 
dividual and dissenting opinions are not as common in New 
Hampshire as in other States, they are by no means unknown 
there.®^ Furthermore, they argue, if the law is passed, the 
question of constitutionaUty wiU be litigated before the court 
an3rway, and the justices ought not to be hampered by pre- 
vious views. If this argument were admitted as a sufficient 
reason for a refusal, the usefulness of the advisory opinion in 
the United States would be reduced to almost nothing, for it 
would apply to practically all questions regarding the consti- 
tutionality of pending legislation. If it had been applied as 
a test during the past century, the number of advisory opinions 
in our reports would have been reduced over twenty-five percent. 
The advantage of obtaining a judicial opinion on the constitu- 
tionality of a measure in advance of its enactment is recog- 
nized in the practice of all the States where the legislature may 
request advisory opinions, including New Hampshire itself. ^° 
It would have been much better had the judges contented 
themselves with the perfectly satisfactory answer (which was, 
apparently, quite consistent with the facts) that the time per- 
mitted for consideration was insufficient to admit of a reply. ^^ 
The subject matter of four interrogatories is the power of 
a legislature to exempt certain kinds of property from taxation 

"See Opin. of the Justices, etc., 41 N. H. 553; Opin., 45 N H. 607; 
In re Opin. of Justices, 74 N. H. 606; and recently In re Opinion of the 
Justices, 77 N. H. 611 (especially the opinion of Peaslee, J.). 

"An Opin. of the Justices, etc., 7 N. H. 599; Opin. of the Justices, 
etc., 25 N. H. 537; Opin. of Justices, 44 N. H. 633; Opin. of the Justices, 
etc., 45 N. H. 595; In re Opin. of the Justices, 76 N. H. 588; In re Opinion 
of the Justices, 76 N. H. 609; In re Opin. of the Justices, 77 N. H. 611. And 
see pp. 154-158 infra. 

'"• See p. 219 infra. 



THE ADVISORY OPINION IN PRACTICE 113 

or to authorize its exemption. ^^ j^ the earliest of these a New 
Hampshire court was again compelled to decHne to answer 
through lack of time for examination, and unfortunately, 
again tries to make doubtful excuses do the work of sound 
reasons. The house of representatives asked whether the law 
authorizing towns to exempt manufacturing property from 
taxation was a violation of the bill of rights. In their refusal, 
the judges argued ingeniously that since contracts aheady 
made under the law were valid in any case (previous judicial 
construction having favored constitutionaUty), and the invalid- 
ity of future contracts could be effected by repeaUng the law, 
a judicial opinion as to its true construction was unnecessary. 
But this assumes two premises, that the court could not change 
its mind as to constitutionality and that the house of represen- 
tatives is only entitled to ask opinions on points which the 
court has never passed upon. , It is submitted that these 
premises are not conclusive. The court may be unwiUing to 
overrule a regular case in an advisory opinion,^^ but this does 
not do away with the obhgation to teU an authorized inquirer 
what the state of the law is, whether settled or not. Suppose 
a legislature does not wish to repeal a statute but is desirous 
of amending certain clauses if they are unconstitutional, is 
it not entitled (under an advisory opinion provision) to know 
the judicial opinion as to the construction of those clauses? 
Other opinions relating to taxation cover the method of taxing 
certain kinds of property,^^ the necessity of imposing a tax on 

"Opin. of the Court, 58 N. H., 623; In rt Opin. of the Justices, 76 
N. H. 609; In re Opin. of the Justices, 77 N. H. 611; In re Construction of 
Revenue Law, 2 S. D. 58. 

"In re Bounties to Veterans, 186 Mass. 603; Opin. of the Justices, 
196 Mass. 603; In re Opin. of the Justices. In re Taxation, 220 Mass. 613; 
In re Opin. of the Justices, 76 N. H. 588; In re House Resolutions, etc., 
15 Colo. 598; In re Assessment of Property, etc., 25 Colo. 296; and many- 
other cases. 

^* Taxation of National Banks, 53 Me. 594; In the matter of the Con- 
stitutionaUty of HB. No. 270 and SBB. No. 69 and No. 106, etc., 9 Colo. 
635 (mining claims). 



114 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

property at the close of a period of constitutional exemption/^ 
the power to authorize towns to lay a special tax/^ and the 
power to sell in default of payment of taxes. '^^ The last two 
opinions were in response to requests from the governor. 

(ii) Appropriations. Quite a few questions deal with the 
power to appropriate money for a particular purpose — for 
bounties to veterans of the Civil War/^ as a pension to a de- 
ceased official's widow/^ for the development of land to furnish 
homes to wage-earners,^^ in aid of a church or religious society 
or sectarian school or other undertaking,^^ for old age pensions, ^^ 
to aid unfinished railroads within the State,^ to reimburse coun- 
ty treasurers, for sums paid by them under an act of the legis- 
lature,^ for the relief of destitute farmers after years of severe 
drouth,^^ to cover failure by counties to pay the expenses of 

^' In the matter of House Resolution, etc., 9 Colo. 622. 

'« In re Abolishing School Districts, 27 R. I. 598. 

'^ Advisory Constitutional Opin. of the Judges, etc., 37 Mo. 129. 

^8 In re Bounties to Veterans, 186 Mass. 603; In re Opin. of the Justices, 
190 Mass. 611; In re Opin. of the JuEticeo, 211 Mass. 608. In the first of 
this interesting series, the justices declared the appropriation would be 
unconstitutional, not being for public purposes. Again, in the second, the 
justices felt bound to adhere to the settled law of the State but hinted that 
an appropriation might be permitted, to recognize the valuable services 
of persons serving in the Civil War, to be paid to them or to buy medals, 
if the dignity of the state would be enhanced or patriotism promoted thereby. 
And when the third inquiry alleged that the purpose of the appropriation 
was to "promote patriotism" and the public good, a majority of the jus- 
tices declared, "We are bound to take as true the purposes declared in the 
proposed act as those, and those only, which the Legislature had in view in 
its enactment;" though Rugg, C. J., insisted that the assertion of a patriotic 
purpose did not change the essence of the bill at all, and that the reasoning 
in 190 Massachusetts, 611, should apply. 

'» In re Opin. of the Justices, 175 Mass. 599. 

80 In re Opin. of the Justices, 211 Mass. 624. 

*^ In re Opin. of the Justices, 214 Mass. 599. 

"In re Opin. of the Justices, 100 Atl. 49 (N. H.). 

9* In the matter of the Executive Communication, 13 Fla. 699. 

8* In re Bounties, 18 Colo. 273. 

w In re Relief Bills. 21 Colo. 62. 



THE ADVISORY OPINION IN PRACTICE 115 

girls committed to the State Home for Girls.^^ for pa3anent of 
a stenographer in the attorney-general's office. ^^ There are 
four Colorado opinions^^ on the power of the legislature to make 
appropriations from the internal improvement fund. Another 
Colorado case^^ merits special attention because of its influence 
upon the financial poHcy of the State. The seventh general 
assembly heaped up appropriations far in excess of the revenue 
which could be provided under the constitution. A request 
from Governor Cooper for a criterion to test the legaHty of any 
particular appropriation, ehcited from the supreme court a 
clear though guarded statement of the general principles that 
should govern the legislature in making its appropriations. The 
judges declared that the excess appropriations were absolutely 
void, and the constitution provided no method of rehef . Appro- 
priations for the expenses of the government were to be pre- 
ferred to all other appropriations, regardless of date or emergency 
clause, but questions of priority among other appropriations 
would have to be determined in regular judicial proceedings. 
This opinion is unquestionably the constitutional law of Colo- 
rado. In his message to the next legislature. Governor Cooper 
called their attention to the fact that there were appropriations 
on the statute books which were not available and asked for 
their repeal. ^° His successor. Gov. Routt, declared $600,000 

^ In re Constitutionality of SB. No. 196, 23 Colo. 508. 

^^ In re Appropriations for Deputies, etc., 25 Nebr. 662. 

^8 In re Senate Resolution Relating to Internal Improvement Fund, 
12 Colo. 285; In re Senate Resolution Relating to Appropriation, etc., 12 
Colo. 287; In re Internal Improvements, 18 Colo. 317; and In re Internal 
Improvement Fimd, 24 Colo. 247. 

^^ In re Appropriations by General Assembly, 13 Colo. 316. 

*° "After the decision of the supreme court, in answer to questions 
submitted to them from my office, in September, 1889, the officers of State 
were compelled to declare certain appropriations made by the Seventh 
General Assembly imavailable. Thus, there stand upon our statute books 
certain acts authorizing expenditures of money for purposes, more or less 
desirable, but with no fimd available to carry out the acts. ... I recom- 
mend the repeal of all acts of appropriation authorizing the expenditure of 



116 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

of state warrants had been taken up by the school fund (sup- 
posedly inviolate!) and other investment funds, and asked 
that the warrants be vahdated and provision made for their 
payment from surplus revenue. ^^ Appropriations by the next 
assembly were within the constitutional limit,^^ ^nd in 1895, 
Hayt, C. J., could say^^ that excess appropriations had gradually 
decreased since the opinion we are considering. However, 
the twelfth general assembly enacted excess appropriations 
to the extent of nearly S500,000, and Governor Thomas reminded 
the next assembly that they were void according to the opinion 
of the supreme court. ^^ Governor Peabody also accepted the 
opinion as final, in 1903.^^ 

Answers have been given, too, to questions as to the power 
of the governor to recommend appropriation items, ^® the power 

moneys beyond the estimated revenues of the State. In fact, in this line, 
I urge the repeal of all laws for appropriations not absolutely neces.ary 
for the government of State affairs and the advancement of the interest 
of the people." SJ. 1891, p. 58. 

91 See SJ. 1891, pp. 103-4. 

82 See Gov. Routt's Message of January 7, 1893, SJ., pp. 46-7, and Gov. 
Waite's Inaugural, ibid., p. 131. 

""These cases . . . are a part of the litigation which springs from 
the custom of the legislature, at each biennial session, to appropriate money 
in excess of the revenues of the state, in violation of express constitutional 
mandates. . . . This practice . . . has led to expensive and vexatious 
Htigation, to the impairment of the credit of the state, resulting not infre- 
quently in the deprivation of some of our most deserving institutions of 
funds absolutely necessary. ... To the credit of the legislature, be it 
said, however, that such unconstitutional appropriations have gradually 
decreased in amount during the six years that have elapsed since the first 
opinion of this court was rendered upon the subject, which is entitled In re 
Appropriations, 13 Colo. 316. . . . The leading opinion in this state in 
reference to the subject was written in the case in 13 Colo, already referred 
to. . . . These principles have been followed and approved in a number of 
cases. " Parks v. Soldiers' and Sailors' Home, 22 Colo. 86, at p. 90. 

"SJ. 1901, p. 21. 

"HJ. 1903, p. 102. 

^ In re Opin. of the Justices, 208 Mass. 610. 



THE ADVISORY OPINION IN PRACTICE 117 

of the legislature to make comptroller's warrants or treasurer's 
certificates receivable for State dues,^^ the power of the legisla- 
ture to appropriate from assessed but not yet collected reve- 
nues,®^ the necessity for specific appropriations where continuing 
appropriations have been provided for,®® and as to the nature 
of an appropriation for a Tax Commission.^'^^ 

There are three refusals to record. A Florida court de- 
clined to answer a question from the governor as to his obhga- 
tion to deed certain land to a town and sign a warrant in its 
favor under an act of the legislature, on the ground that the 
question did not involve executive rights or duties under the 
constitution.^°^ In the second case,^^^ a Colorado governor 
asked the court its opinion as to the priority of legislative 
appropriations, and the court quite reasonably pointed out 
that, since a test case was then pending in a district court, 
private interests were involved and the ex parte enunciation 
of any general rule would be undesirable. ^^^ Finally the supreme 
court of the same State has refused to give an opinion as to the 
constitutionaUty of possible appropriations for a bureau of 
child and animal protection, because the inquiry was not con- 
nected with pending legislation and involved the construction 
of existing statutes.^^^ 

(iii) Miscellaneous. The cases relegated to this subdivision 
cover quite a variety of matters — legislative power to remit 
tolls which were partial security for a bond issue,^°^ to impose 
upon a city a debt greater than it could constitutionally as- 

^^ In the matter of the Executive Communication, etc., 14 Fla. 283. 

98 In re State Warrants, 6 S. D. 518. 

99 In re Continuing Appropriations, 18 Colo. 192. 
^°°In re Questions of the Governor, 55 Colo. 17. 
'"1 Advisory Opinion to Governor, 50 Fla. 169. 

^^^ In re Priority of Legislative Appropriations, 19 Colo. 58. 
"' Cf. In re Appropriations by General Assembly, 13 Colo. 316. 
i°*In re Interrogatories of the House, 162 Pac. 1144 (Colo.). 
10* In re Opin. of the Justices, 190 Mass. 605. 



118 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

sume/°^ to assume the bounty debts of cities and towns/^^ to 
authorize a board of pubhc works to spend city funds upon 
improvements/"^ to control the deposit of State funds/''^ to 
authorize a loan from the school fund/^'^ to determine damages 
caused to private property by the State.^^^ In eight instances 
the questions relate to the power of the legislature to authorize 
a bond issue for certain purposes,"^ or the making of municipal 
loans to assist private enterprises,"^ or the issuance of warrants 
of indebtedness."^ One stray question calls for a definition 
of the fiscal year."^ Three interesting opinions have to do 
with the relative position of the two houses in financial matters — 
the power of the senate to determine the proportion of ratable 
property in towns/^^ to originate appropriations,"^ and to 
originate appropriations or bills authorizing exemption from 
taxation."^ Two Colorado cases deal with the power of the 
legislature to apportion the debts of old counties when new 
counties are created therefrom."^ A Missouri court informed 
the governor that an act of the legislature releasing a first lien 
of the State upon a particular railroad was constitutional,^^ 
but seven years later a differently constituted court refused 

io« In re Opin. of the Justices, 99 Me. 515. 

1" Opin. of the Justices, 53 Me. 587. 

108 In re SB. Providing for a Board of Public Works, etc., 12 Colo. 188. 

108 In re HR. Relating to HB. No. 349, 12 Colo. 395. 

"0 In re Loan of School Fund, 18 Colo. 195. 

1" In re ConstitutionaUty of Substitute for SB. No. 83, 21 Colo. 69. 

"2 In re State Bonds, 81 Me. 602; In re Opin. of the Justices, 34 R. I. 
191; In re HB. No. 165, 15 Colo. 593, 595; In re Casual Deficiency, 21 Colo. 
403; In re State Bonds, 7 S. D. 42; In re House RoU 284, 31 Nebr. 505. 

"3 Opin. of the Justices, 58 Me. 590. 

"*In re Canal Certificates, 19 Colo. 63. 

"» In re HR. No. 25. 15 Colo. 602. 

"• Opin. of the Justices, 126 Mass. 547. 

1" Opin. of the Justices, 126 Mass. 557. 

"« Opin. of the Justices, 70 N. H. 642. 

"»In the matter of HB. No. 231, 9 Colo. 624; In the matter of the 
Constitutionality of Section 9 of HB. No. 122, 9 Colo. 639. 

12° Advisory Constitutional Opin. of the Judges, etc., 37 Mo. 139. 



THE ADVISORY OPINION IN PRACTICE 119 

the senate an answer to the same question (though relating 
to a different act), for the reason that "the matters referred 
to concern the property rights of the State and the vested 
rights of individuals and corporations, and are such as are 
liable at any time to be brought before the courts in real con- 
troversies for adjudication."^^ Practically the same court 
decUned, the following year, to give an opinion to the house 
of representatives upon a bill giving a railroad more time to 
repay a loan from the State, for the same reason .^^ Finally 
there are two refusals in Colorado, besides the one noted above 
(In re Priority of Legislative Appropriations, 19 Colo. 58). 
In In re University Fund, 18 Colorado, 398, the senate asked 
whether the general assembly could constitutionally create 
a University Land Permanent Fund from certain sources or 
give the Board of Regents exclusive control of certain proceeds 
from sales of land, and the court dechned to answer because 
the question involved the constitutionality of existing sta- 
tutes,^ though it went on to say that the provisions of the 
bill submitted did not seem to contravene any clause of the 
constitution. And In In re Assessment of Property by the 
State Board of Equahzation, 25 Colorado 296, the governor asked 
(inter alia) whether the legislature could constitutionally 
authorize a board of equahzation to assess raikoads, and the 
court felt "constrained to withhold" any opinion, for the very 
good reason, that a case involving the same subject matter 
was at that time before the court. 

Summary. There is such unanimity on the part of the 
courts in deahng with questions concerning the financial powers 
and duties of the legislature, that generalization can be quite 
succinct. Such questions are, it would seem, ex sua natura, 

"1 In the matter of the N. Mo. R. R., 51 Mo. 586. 
^ Opin. of the Court in Response to the Resolution of the General 
Assembly, etc., 55 Mo. 497. 

"' For the validity of this rule see pp. 193-202 infra. 



120 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

"important questions," and will be answered unhesitatingly, 
whether put by the legislature itself or by the governor. As 
a matter of course, the subject matter is, in most cases, questions 
of taxation or appropriation, but there is a sufficient diversity 
in the twenty-two miscellaneous cases reviewed (where answers 
were given) to indicate that all questions of a financial nature 
will be favorably received, and, unless they fall within the rea- 
sons for disapproval pointed out in a later chapterj^^"* readily 
answered. 

d. Police Power of the Legislature. There has been no at- 
tempt to bring within this section all the cases where questions 
were raised which involved the police power. For instance, 
some of the questions in the section on Labor^^^ might have been 
listed here, had it not seemed preferable to let subject matter 
rather than juridical aspect determine their, classification. So 
only the police power cases of a nondescript character having 
little in common with the other sections of this chapter will 
be found here. They are few in number and so dissimilar 
inter se as to discourage any efi^ort at generalization. It may 
be observed, however, that there are but two refusals to answer 
out of fifteen cases, and only one of them because of the inherent 
nature of the inquiry. 

The opinions given treat of the power of the legislature to 
regulate patents and the rights of patentees,^^^ to exclude girls 
from Chinese restaurants,^'^^ to prohibit gift enterprises,^^^ to 
control the sale of convict goods,^^^ to control price discrimina- 
tions in restraint of trade, and monopohes,"^ to enact anti- 

1" See pp. 161-237 infra. 

125 See pp. 123-125 infra. 

126 In re Opin. of the Justices, 193 Mass. 605. 
1" In re Opin. of the Justices, 207 Mass. 601. 

128 In re Opin, of the Justices, 208 Mass, 607; In re Opin. of the Justices, 
115 N. E. 978 (Mass). 

129 In re Opin. of the Justices, 211 Mass. 605. 
"0 In re Opin. of the Justices, 211 Mass. 620. 



THE ADVISORY OPINION IN PRACTICE 121 

saloon laws/^^ to standardize fire insurance policies/^^ and to 
regulate the weighing of coal.^'^^ In four instances there are 
opinions upon the power to authorize cities to manufacture 
gas and electricity,^^^ run fuel yards for the benefit of their 
citizens/^^ or estabhsh municipal factories.^^^ One refusal was 
occasioned by a request from the New Hampshire governor 
as to the power of the legislature to amend corporation charters 
by increasing the number of trustees.^^^ Essentially this called 
for an opinion on the constitutionality of the well-known act 
amending the Dartmouth College charter, which had been passed 
five months earUer, and the judges not unreasonably objected 
to deaHng extra- judicially with private rights which had already 
accrued and would in all likelihood come before them judi- 
cially.^^^ But in the other instance where an opinion was 
refused,^^^ no private rights had as yet come into existence, 
for it appears from the discussion by the court that the bill 
(to increase the capital stock of a corporation, enlarge its powers, 
etc.) was then pending in the legislature. The judges were 
altogether too narrow in their construction of the advisory 
opinion clause,^^^ and the case should not be looked upon as 
estabhshing a precedent.^^ 

131 Opin. of the Justices, etc., 25 N. H. 537. 

"2 In re Opin. of Justices, 97 Me. 590. 

"3 In re HB. No. 10, etc., 15 Colo. 600. 

"^ In re Public Lighting, 150 Mass. 592. 

135 Opin. of the Justices. In re HB. No. 519, 155 Mass. 598; In re 
Municipal Fuel Plants, 182 Mass. 605. 

i3« Opin. of the Justices, 58 Me. 590. 

1" 0pm. of the Court, 62 N. H. 704. 

1** As to the vahdity of such an excuse see pp. 181-202 infra. 

"^ Advisory Constitutional Opin. of the Judges, etc., 37 Mo. 135. 

1" See pp. 44-46 supra and pp. 181-202 infra. 

"1 A resolution was adopted in the Senate of Minnesota in 1863 (SJ. 
1863, p. 54) asking the supreme court if the legislature could by special 
act create private corporations or confer certain special privileges upon 
individuals. There is no record of a reply in the journal or in the supreme 
court reports for 1863. 



122 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

It might be added that the Canadian supreme court has on 
five occasions given opinions on questions involving the police 
power — In re Provincial Jurisdiction to Pass Prohibitory Liquor 
Laws (24 Can. S. C. R. 170), In the matter of the Jurisdiction 
of a Province to Legislate Respecting Abstention from Labor 
on Sunday (35 Can. S. C. R. 581), In re International and 
Inter-provincial Ferries (36 Can. S. C. R. 206), In re References 
by the Governor-General in Council (43 Can. S. C. R. 536), 
and In the matter of Jurisdiction over Provincial Fisheries 
(26 Can. S. C. R. 444). 

e. Eminent Domain. Only eight opinions where the right 
of eminent domain was involved have come to Ught. All but 
one are due to interrogatories from the legislature. In the light 
of advisory opinion theory, they are of Httle interest. They 
include questions as to the power of a legislature to authorize 
a city to take land for broadening streets or for warehouse 
sites,^^ to authorize a city to build bridges across streets, mak- 
ing compensation to abutting owners,^^^ to authorize a commis- 
sion to obtain and develop land for workingmen's homes,^*^ 
to regulate the destruction of forests by owners in the public 
interest,^^^ to authorize a commission to obtain land for public 
parks,^^^ and to compel street improvements at the expense of 
abutting owners. ^^^ 

f. Education. Ten opinions (including one that is extra- 
constitutional) have to do with matters touching education 
or the educational system. They are even more barren of 

^^ In re Opin, of the Justices, 204 Mass. 607; In re Opin. of the Justices, 
204 Mass. 616. 

"3 In re Opin. of the Justices, 208 Mass. 603; In re Opin. of Justices 
to Senate, 208 Mass. 625. 

i*»In re Opin. of the Justices, 211 Mass. 624. 

"5 In re Opin. of the Justices, 103 Me. 506. 

i*« In re Opin. of the Justices, 34 R. I. 191. 

"^ In re House Resolutions Concerning Street Improvements, 15 Colo. 
598. 



THE ADVISORY OPINION IN PRACTICE 123 

theoretical interest than those in the preceding section, but 
are hsted for the sake of completeness. Four were prompted 
by executive inquiries. The questions answered are as follows: 
the right of residents on land ceded to the United States for 
military purposes to use the common schools of the State/^^ 
the meaning of school district in a certain appropriation act/^^ 
the habihty of school districts aboUshed by law for previous 
debts/^'^ the power to change the location of educational in- 
stitutions or to consohdate them/^^ the power of the legislature 
to authorize loans from the Permanent School Fund/^^ the 
power to estabhsh kindergartens in the pubhc school system/^ 
the power to consohdate school districts/^ the tenure of school 
boards/^^ and the power of the executive to invest the permanent 
school fund.^^^ The refusal in In re University Fund, 18 Colorado 
398, to advise upon the power of the legislature to give univer- 
sity regents the exclusive control of certain funds, was based 
upon the familiar excuse^^^ that the question involved the 
construction of existing statutes. 

g. Labor. The eleven cases which fall within the scope of 
this heading come from only two States, Massachusetts and 
Colorado. Nine of the references fell upon good soil, five in 
Massachusetts: the power to compel weekly payment of wages 
generally, ^^^ to estabhsh an eight hour day for pubhc employees,^^^ 

i^sQpin. of the Justices, 1 Mete. 580. 

"9 In re Opin. of the Justices, 75 N. H. 622. 

^"O In re Abohshing School Districts, 27 R. I. 598. 

^^ In the matter of Senate Resolutions, etc., 9 Colo. 626. 

152 In re Loan of School Fund, 18 Colo. 195. 

153 In re Kindergarten Schools, 18 Colo. 234. 

"*In re Annexation and ConsoHdation of School Districts, SB. No. 
9, 26 Colo. 136. 

"5 In re Construction of School Law, Ch. 9. s. 7, 2. S. D. 71. 
i5« In re School Fund, 15 Nebr. 684. 
1" See pp. 193-202 infra. 

158 In re HB. No. 1230, 163 Mass. 589. 

159 In re Opin. of Justices, 208 Mass. 619. 



124 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

to enact a pending workmen's compensation act,^^*^ to exempt 
labor unions and the members thereof from certain tortious 
liabiHty,*^^ and to limit the right of railroads to discharge em- 
ployees ;^^2 and four in Colorado : the power to enact a compulsory 
arbitration law/^ to interfere with the freedom to contract for 
wages/^ to establish an eight hour day for certain classes of 
laborers/^^ and to abolish the use of scrip in the payment of 
wages.^^^ But two of the judges in the latter State, Campbell 
and Goddard, JJ., felt they had gone too far under the leader- 
ship of Hayt, C. J., and refused point blank to answer questions 
in no essential respect dissimilar to those which have just been 
mentioned — i.e. as to the constitutional authority of the legislature 
to aboHsh payment of laborers in anything but lawful money 
of the United States.^^^ These questions, they said, were not 
important questions puhlici juris and so came within the rule 
of 12 Colorado, 466; furthermore answers might affect private 
rights if the bill should be enacted into law. They admitted 
a departure from these tests in In re Bill — to Abolish the Use 
of Scrip, 23 Colorado, 504, and in another case, but condemned 
the course there followed. Although a consideration of the va- 
lidity of these excuses may better be deferred (see pp. 182-205 
infra), it may be said at this place that if they had been appHed 
strictly in Massachusetts and Colorado, the eleven opinions of 
this section would all be labeled refusals, and scores of other 
cases as well. 

The Canadian reports disclose three opinions of the supreme 
court in cases involving labor questions: Union Colliery Com- 

i"" In re 0pm. of Justices, 209 Mass. 607. 

^" In re Opin. of the Justices, 211 Mass. 618. 

"2 In re Opin. of the Justices, 220 Mass. 627. 

^«3 In the matter of a Bill for an Act, etc., 9 Colo. 629. 

"^In re HB. No. 203, 21 Colo. 27. 

^^ In re a Bill Providing that Eight Hours Shall Constitute a Day's 
Labor, 21 Colo. 29. 

^^ In re Bill— to Abolish the Use of Scrip, etc., 23 Colo. 504. 

1" In re HB. No. 99. etc., 26 Colo. 140; and In re SB. No. 27, etc., 28 
Colo. 359. 



THE ADVISORY OPINION IN PRACTICE 125 

pany of British Columbia v. Attorney- General of British 
Columbia, et al., 27 Can. S. C. R. 637, (an appeal from a refer- 
ence to the supreme court of British Columbia regarding the 
Coal Mines Regulation Act), In the matter of the Jurisdiction 
of a Province to Legislate Respecting Abstention from Labor 
on Sunday, 35 Can. S. C. R. 581, and In re Railway Act Amend- 
ment 1904, 36 Can. S. C. R. 136, (the power to regulate the 
liabihty of railroads for injuries to employees). 

h. Miscellaneous Questions as to Legislative Power. It has 
been found necessary to refer thirty-eight cases to this hetero- 
geneous group, as not coming under any of the preceding sec- 
tions. Three of these are extra-constitutional cases from 
Maine, New York and Ohio. The reaction of the judges has 
been favorable with respect to the following questions: the 
power of the legislature to fill vacancies in the executive coun- 
cil,^^^ to commute punishments after sentence has been given,^^^ 
to exempt certain classes from mihtia service, ^^° to make certain 
classes eHgible to enroll in the mihtia,^^^ to change town or county 
lines,^^^ to aboHsh the probate and insolvency register and give 
his duties to another officer,^^^ to create a civil service com- 
mission with certain powers,^^^ to authorize the estabhshment 
of new ward hues before a particular census,^^° to authorize the 
appointment of women as notaries public,^^^ to change 

i^^Opin. of the Justices, 14 Mass. 470. 

i«^Opin, of the Justices,. 14 Mass. 472. 

i^oopin. of the Justices, 22 Pick. 571. 

"1 Opin. of the Justices, 14 Gray, 614. 

^" Opin. of the Justices, 6 Cush. 578; and In the matter of the Executive 
Communication, etc., 14 Fla. 320. 

i"Opin. of the Justices, 117 Mass. 603. 

i^-'Opin. of the Justices, 138 Mass. 601. 

"5 Opin. of the Justices, 157 Mass. 595. 

"« In re Opin. of the Justices, 165 Mass. 599; In re Opin. of the Justices, 
99 Atl. 999 (N.H.);Opin.s of the Justices, etc., 62 Me. 596 (question re 
appomtment of women as justices of the peace); and In the matter of HB. 
No. 166, 9 Colo. 628. 



126 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

the census date within an appointed year/^^ to authorize a 
guardian to convey the realty of his ward/^^ to provide for 
recording deeds with town clerks,^^^ to elect a United States 
Senator for a particular term,^^'^ to direct insane asylum trustees 
to convey land to the State/^^ to grant divorces/^^ to pass the 
so-called "Personal Liberty Laws,"^^ to annul a judgment of 
the supreme court,^^ to call a constitutional convention or sub- 
mit to the people the question of its desirabihty,^^ to order a 
new election in case of failure to elect a United States repre- 
sentative,^^^ to consolidate municipahties/^^ to decide contests 
for the governorship/^^ or for any executive office/^^ to provide 
a special apportionment of delegates for a constitutional con- 
vention ;^^'^ and the duty of the legislature to provide for a 
census.^^^ In 1878 several towns asked the State of Maine 
for the repayment of certain sums paid out by them as bounties; 
a resolution was introduced in the legislature in favor of the 
towns, and finally the whole matter was referred to three justi- 
ces of the supreme court, as a commission, to determine questions 
of law and fact. The justices obhgingly comphed with the 
request,^^^ 

1" In re Opin. of the Justices. In re Census, 220 Mass. 609. 
"8 An Opin. Delivered by the Court, etc., 4 N. H. 565. 
1" An Opin. of the Justices, etc., 7 N. H. 599. 
isf^Opin. of the Court, 60 N. H. 585. 

181 Opin. of Justices, 70 N. H. 638. 

182 Opin. of the Justices, 16 Me. 479. 

183 Opin.s of the Justices, etc., 46 Me. 561. 

184 Opin. of the Supreme Court, 3 R. I. 299. 

185 In re the Constitutional Convention, 14 R. I. 649. 

186 In re the Congressional Election, 15 R. I. 624. 

187 In re Extension of Boundaries of the City of Denver, 18 Colo. 288; 
and In re ConstitutionaUty of SB. No. 293, 21 Colo. 38. 

188 In re Senate Resolution No. 10, etc., 33 Colo. 307. 

189 In re Quaere of the Procedure of the Two Houses, etc., 31 Nebr. 262. 
""Deb. Mass. Conv. 1853, I, 138. 

181 In re State Census, 6 S. D. 540. 

182 Opin.s of the Justices, etc., 69 Me. 585. 



THE ADVISORY OPINION IN PRACTICE 127 

On the other hand opinions have been refused outright in 
six cases. When the governor of Florida asked for advice as 
to the general scope of legislation permitted to the current 
session of the legislature, that he might know what biUs could 
properly be submitted for his approval, he was promptly told 
that the exercise of the veto was not an executive but a legis- 
lative act and therefore his question did not come within the 
advisory opinion clause of the constitution.^^^ Four times the 
Colorado justices have declined to answer, when references 
were made relating to the general construction of constitutional 
clauses on irrigation and the power of the legislature- thereun- 
der,^^^ the constitutionahty of a pending act,^^^ the constitu- 
tionahty of a bill submitting an amendment, ^^^ and the power to 
repeal a law submitting an amendment.^" In aU of these cases 
the justices objected that the questions as put were too general — 
an objection weU within the practice in this State.^^^ In the 
first of these they also quite properly called attention to the 
fact that cases involving these questions were then awaiting 
adjudication; and in the last two they reiterated another common 
Colorado rule, that advice will not be given to the assembly on 
pending legislation "unless, among other things, it is shown that 
the same has at least passed the committee of the whole. "^^^ 
In the Ohio case (a question of legislative power over munici- 
palities) the court rested its refusal upon the want of constitu- 
tional authority to give extra-judicial advice.^^^ In two in- 
stances, answers to some of the questions submitted (upon the 
power of the legislature to appoint ofl&cers otherwise than as 

^^3 In re Executive Communication, etc., 23 Fla, 297. 
19^ In the matter of Senate Resolution on the Subject of Irrigation, 9 
Colo. 620. 

"5 In re HB. No. 107, 21 Colo. 32. 
i9«In re HB. No. 495, etc., 26 Colo. 182. 
1" In re SR. No. 7, 29 Colo. 350. 
lessee pp. 215-17 infra. 

199 In re SR. No. 7, 29 Colo. 350. And see pp. 212 infra. 

200 State V. Baughman, 38 Ohio St., 455. 



128 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

provided in the constitution ,^°^ and upon the vaUdity of certain 
impeachment proceedings^^^), were made unnecessary by the 
replies to previous questions in the same reference.^®^ 

2. The Executive Department 

a. Composition and Organization. In nearly half of the 
twenty-seven cases classed here, the subject matter is the tenure 
of office of members of the executive department — of the exe- 
cutive councilj^*^"* commissioners of pilots,^^^ the adjutant gen- 
eral,^°® certain officers of the miUtia,^^^ the register of probate,^®* 
the register of deeds,^°^ the governor and other officers,^'*^ cer- 
tain appointed officers,^^^ county treasurers,^^^ and the board of 
capitol commissioners.^^^ Seven deal with eHgibility — to ap- 
pointment on a railroad commission,^^^ or as land agent i^^^ of 
militia officers to hold a second office,^^^ of members of a Seces- 
sion convention to hold any State office,^^'' and of women to 
serve as notaries public.^^^ The other questions are miscel- 
laneous in character: the method of election of the executive 

201 Opin. of the Justices, 136 Mass. 578. 

202 In the matter of the Executive Communication, etc., 12 Fla. 653. 
2» There is a Canadian case deahng with the power of the legislature 

to pass a law relating to bigamy. In the matter of the Criminal Code, etc., 
27 Can. S. C. R. 461. 

204 Opin. of the Justices, 3 Gray, 601. 

206 Opin. of the Justices, 154 Mass. 603. 

2oe In re Opin. of the Justices, 216 Mass. 605. 

207 Opin. of the Justices, 62 N. H. 706; Opin. of the Justices, 2 Me. 439. 

208 Opin. of the Justices, etc., 61 Me. 601. 

209 Opin. of the Justices, etc., 64 Me. 596. 

210 Statement and Questions Submitted, etc., 70 Me. 570. 

211 In the matter of the Executive Communication, etc., 14 Fla. 277. 

212 In the matter of HB. No. 38, etc., 9 Colo. 631. 

213 In re Board of Capitol Commissioners, 18 Colo. 220. 
2" In re Opin. of the Justices, 75 N. H. 613. 

21** Opin. of the Justices, 3 Me. 481. 
210 Opin. of the Judges, etc., 4 R. I. 585. 

217 In the matter of the Executive Communication, etc., 12 Fla. 651. 
21* In re Opin. of the Justice^, 165 Mass. 599; Opin.s of the Justices, 
etc., 62 Me. 596; and In the matter of HB. No. 166, 9 Colo. 628. 



THE ADVISORY OPINION IN PRACTICE 129 

council ,^^^ the successor to the duties of sheriff upon the latter's 
death,22*' ^q necessity for the cooperation of the governor and 
council in approving an appointment by hospital tnistees,^^ 
the successor to the acting governorship when the president of 
the senate ceases to act at the end of a political year,^ the 
procedure in governorship contests,^^ or in contests for any 
executive office.^^ On the other hand, there have been two 
refusals to answer inquiries concerning the tenure of various 
oflScials — certain appointees of the governor ,^^ and the regents 
of education.^^ In both cases the courts advanced the excuse 
that any reply would compel an ex parte examination of private 
rights. However reasonable this excuse may be, an examina- 
tion of the above cases on tenure will show that it has not 
controlled the earher practice in Massachusetts, New Hamp- 
shhe, Maine, Florida, or Colorado itself. Agam, in a quite 
recent case, the Massachusetts court decHned to answer ques- 
tions concerning the general relations of the governor and coun- 
cil in that state,^^^ on the ground that, as it did not appear 
that assistance was necessary in the performance of a pending 
duty, the question was not an "important question" within 
the constitution.^^ 

b. Financial Administration. Twenty-seven opinions in 
all have to do with the financial powers and duties of the gover- 
nor or some other executive officer. In eight instances answers 
were given to questions as to the administration of appropria- 
tes Opin. of the Justices, 3 Gray, 601. 

220 Opin. of the Justices, 126 Mass. 603. 

221 In re Opin. of the Justices, 211 Mass. 632. 

222 Opin. of the Justices, 6 Me. 506. 

223 In re SR. No. 10, etc., 33 Colo. 307. 

224 In re Quaere of the Procedure of the Two Houses, etc., 31 Nebr. 262. 

225 In re Appointments by the Governor, etc., 21 Colo. 14. 
22« In re Ch. 6, Session Laws of 1890, 8 S. D. 274. 

227 In re Opin. of the Justices, 211 Mass. 630. 

228 In re Opin. of the Justices, 211 Mass. 632, is the sequel to this refusal. 



130 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

tions in general,^^ or of appropriations or funds for some special 
purpose — a special school fund,^^ the appropriation for the 
maintenance of indigent persons,^^ the appropriation for the 
salary or mileage of members of the legislature,^^ and the 
general school fund.^^^ Five are concerned with the issuing 
or payment of bonds, warrants or certificates of indebtedness,^ 
and two with the operation of a defective appropriation bill.^^ 
Advice was also given upon six questions of a miscellaneous 
nature — the power of the governor to suggest appropriation 
items to the legislature,^^^ or to pledge the State's credit,^^ 
his duties in administering lotteries,^^ the liability of the trea- 
surer for State funds,^^^ and the power of the board of equaliza- 
tion to levy special taxes,^^ or to make original assessments.^^ 
Six refusals must be recorded. Three are in Florida, where 
the court appUed its prohibition against the construction of 
statutes to questions upon the governor's powers and duties 
in administering certain special appropriations,^ or the school 

229 Opin. of the Justices, 13 Allen, 593; In re Appropriations by General 
Assembly, 13 Colo. 316. 

230 In re Opin. of the Justices, 75 N. H. 622. 

231 Opin.s of the Judges, etc., 4 R. I., 587; Opin.s of the Judges, etc., 
4 R. I. 588. 

232 In re Opin. to Governor, 35 R. I. 166; In the matter of the Executive 
Communication, etc., 12 Fla. 689. 

233 In re School Fund, 15 Nebr. 684. 

234 Opin. of the Court, etc., 49 Mo. 216; In re Certificates of Indebted- 
ness, 18 Colo. 566; In re Contracting of State Debt by Loan, 21 Colo. 399; 
In re State Warrants, 6 S. D. 518; and In re State Bonds, 7 S. D. 42. 

235 In re Advisory Opinion, 43 Fla. 305; and In re General Appropriation 
Bill, 16 Colo. 539. 

236 In re Opin. of the Justices, 208 Mass. 610. 

237 In re Opin. of the Justices, 76 N. H. 601. 

238 Opin. of the Justices, 7 Me. 502. 

239 In re HR. Relating to HB. No. 349, 12 Colo. 395. 
2*0 In re State Board of Equalization, 24 Colo. 446. 
2*1 In re Questions of the Governor, 55 Colo. 17. 
242 In re Opin. of Justices, 54 Fla. 136. 



THE ADVISORY OPINION IN PRACTICE 131 

fund,^ and in countersigning warrants for State printing.^ 
The three Colorado refusals are referable to the same excuse 
although the wording is somewhat different, the fact being 
empha,sized that it would involve an ex parte determination 
of private rights to answer certain inquiries put concerning 
the salary and powers of the State treasurer,^^ the duties of 
the governor and auditor in administering appropriations when 
questions of priority were raised,^^ and the powers of the 
auditor and board of equalization over assessments.^^ 

c. Appointment and Removal Powers of Executive Officers. 
Most of the thirty-four cases^^ placed here deal with the ap- 
pointive power of the governor: does it extend to the selection 
of particular officials — the commissioners of pilots,^^ certain 
coimty officers,^^^ the census superintendent,^^ a committee of 
investigation,^^ an unnamed State ofi&cial,^^ the board of pubHc 
works,^ a justice of the supreme court,^^ the matron of the 
insane hospital ;2^^ or the filling of particular vacancies — in the 
United States house of representatives,^^ on the raihoad com- 
mission or board of agriculture,^^ among county officers gen- 

243 In re Opin. of Judges, 62 Fla. 4. 

2*4 In re Advisory Opin. to the Governor, 64 Fla. 1. 

^ In re HR. No. 25, 15 Colo. 602. 

^ In re Priority of Legislative Appropriations, 19 Colo. 58. 

24' In re Assessment of Property, etc., 25 Colo. 296. 

248 This includes two that are extra-constitutional, 

249 Opin. of the Justices, 154 Mass. 603. 

250 Statement of Facts, and Questions, d>^ Me. 597. 
2** In re the Census Superintendent, 15 R. I. 614, 

252 In re the Investigating Commission, 16 R. I. 751. 

253 In re Advisory Opin. to the Governor, 65 Fla. 434. 

254 In re SB. Providing for a Board of Public Works, etc., 12 Colo. 188. 

255 In re Supreme Court Vacancy, 4 S. D, 532. 

256 In re Board of Pubhc Lands and Buildings, 18 Nebr. 340. 

257 In re the Representation Vacancy, 15 R. I. 621. 

258 In re Railroad Commissioner, 28 R. I. 602. 



132 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

erally,^* or in the court of appeals ;2^'^ does it authorize the 
appointment of women as notaries public,^^^ or on the board 
of health, lunacy and charity,^^^ or as county treasurer ;2^ or 
the preferment of Civil War veterans in civil service appoint- 
ments,^^ or the appointment of members of the legislature to 
the boards of State institutions?^^^ Except two which deal 
with the power of appointment in general,^^^ the other opinions 
on appointment have to do with miscellaneous questions: the 
governor's power to fill vacancies on a corporation,^^^ his right 
to appoint the first incumbent of an office when the legislature 
fails to elect,^^^ the method of fiUing vacancies to which the 
governor has failed to appoint,^^^ the need of the senate's con- 
firmation of certain appointments,^^^ and the governor's duty 
to submit temporary appointments to a special session of the 
legislature.^ '^^ Interrogations connected with the power of 
suspension or removal are much fewer. Two are general in 
nature,^^^ three are concerned with particular officials — county 

259 Vacancies in Elective County Officers, 25 Fla. 426. 

^'oOpin. of the Judges of the Court of Appeals, 79 Ky. 621. 

261 Opin. of the Justices, etc., 150 Mass. 586; and In re Opin. of the 
Justices, 73 N. H. 621. 

2«2 0pin. of the Justices, 136 Mass. 578. 

283 In re Opin. of Judges, 62 Fla. 1. 

2«*0pin. of the Justices, etc., 145 Mass. 587; Opin. of the Justices, 
166 Mass. 589. 

2«sin re Members of Legislature, 49 Fla. 269. 

2«« Opin. of the Justices, 3 Gray, 601 ; and In re Opin. of Justices, 67 
Fla. 423. 

2"Opm. of the Court, 62 N. H. 704. 

2«8 0pm. of the Justices, etc., 45 N. H. 590. 

2" In re Decision of Justices, etc., 28 R. I. 607. 

'^°In re Advisory Opinion to the Governor, 45 Fla. 154; and In re 
Question Propounded by the Governor, 12 Colo. 399. 

2^1 In re Advisory Opin. to the Governor, 64 Fla. 16. 

2" Opin. of the Justices, 3 Gray, 601; and Question Submitted, etc., 
72 Me. 542. 



THE ADVISORY OPINION IN PRACTICE 133 

commissioners,^^^ circuit judges,^'^ and the fire and excise com- 
missioners of a city .2^^ 

There are four refusals. In Opinion of the Justices, 62 
New Hampshire, 706, an inquiry from the mayor and aldermen 
of a city as to the location of the power to appoint and remove 
members of the fire department met with the fate that should 
have been anticipated. Twice a Florida court declined to ex- 
press any opinion as to the governor's power to appoint circuit 
judges, because it would necessitate the interpretation of a 
statute ;2^^ and in Question Submitted by the Governor, etc., 
85 Maine 545, the justices declared that the possible removal of 
a county attorney did not create a "solemn occasion" calling 
for their advice. 

One of the Canadian opinions is in reply to a reference 
concerning the power of a provincial Heutenant-governor to 
appoint Queen's Counsel or grant precedence to selected mem- 
bers of the bar .2^^ 

d. Electoral Duties. Of the seventeen interrogations re- 
lating to the duties of the executive in connection with elections, 
nine belong to the State of Maine. All of these deal with the 
extent of the governor's duties in canvassing the returns from 
an election for county officers,^^^ or from general elections.^^^ 
Similar questions are answered in Opinion of the Justices, 53 New 

2^^ In re Advisory Opin. to Governor, 64 Fla. 168, 

274 0pin. of the Justices, 67 Fla. 489. 

2^5 In re Fire and Excise Commissioners, 19 Colo. 482. 

"^ In re Opin. of the Justices, 69 Fla. 632; and In re Opin. of the Justices, 
etc., 69 Fla. 653. 

2" Attorney-General for Dominion v. Attorney-General for Ontario, 
(1898) A. C. 247. 

2^8 Opin. of the Justices, etc., 25 Me. 567; Statement of Facts, and 
Questions, 38 Me. 597; and Opin. of the Justices, 54 :Me. 602, 

2" Opin.s of the Justices, etc., 64 Me. 588; Opin.s of the Justices, etc., 
64 Me. 596; Opin.s of the Justices, etc., 68 ]Me. 587; Questions Submitted, 
etc., 70 Me. 560; Statement and Questions Submitted, etc., 70 Me. 570; 
and Statement and Questions Submitted, etc., 70 Me. 600. 



134 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

Hampshire, 640, and Opinion of the Court, 58 New Hampshire, 
621, but the same court twice refused to give to the legislature 
opinions as to the power of the governor to reject certain votes, 
when the rejection was a fait accompli?^^ The other four 
questions were all answered; they deal with the duty or power of 
the governor to recount ballots in a contested election,^^! the 
powers of the secretary of state in counting the signatures on a 
referendum petition ,^^2 and the duty of the governor to order a 
new election upon failure to elect a United States representative.^^ 

e. Military Questions. The subject matter of five inter- 
rogatories is the constitutional powers of the commander-in- 
chief of the State's pubUc armed forces (to determine the exis- 
tence of an exigency calling for the use of the mihtia in the 
federal service,^^ or to disband companies of militia,^^^ or to 
determine the rank of militia officers^^^), or Ihe position and 
powers of subordinate militia officers (when the militia is in 
the service of the United States,^^^ or in administering an oath 
to the judge advocate of a court martial,^^^ or as to tenure 
generally ,2^^ or when an apphcation for a court martial has 
been made^^^). It will be seen that four of these five cases 
are from Massachusetts and only one of the five is of later date 
than 1860. There are no refusals. 

280 Opin. of the Justices, 56 N. H. 570; and Opin, of the Justices, 56 
N. H. 574. 

281 Opin. of the Justices, 117 Mass. 599; and Opin. of the Justices, 136 
Mass. 583. 

282 In re Opin. of the Justices, etc., 114 Me., 557. 

283 In re the Congressional Election, 15 R. I. 624. 

284 Opin. of the Justices, 8 Mass. 548. 

285 Opin. of the Justices, 1 Allen, 197 n. 
286C^in. of the Judges, etc., 5 R. I. 598. 

287 Opin. of the Justices, 8 Mass. 548. 

288 Opin. of the Justices, 3 Cush. 586. 

289 Opin. of the Justices, 132 Mass. 600. 

290 Opin. of the Judges, etc., 5 R. I. 598. 



THE ADVISORY OPINION IN PRACTICE 135 

f. The Execution of the Criminal Law. If we include the 
seven Oklahoma cases under the capital conviction statute^^^ 
and three other extra-constitutional opinions, we find twenty- 
three opinions deaUng primarily with questions of the criminal 
law. Seven of these treat of the executive powers of pardon, 
commutation and reprieve — the legal effect of the trial judge's 
recommendation for a commutation,^^^ the need for the executive 
council to approve a pardon or commutation,^^^ the power of 
the governor and council to consider an application for pardon,^^'* 
whether the executive's pardon can restore voting privileges,^^^ 
the executive power to grant reprieves,^^^ and the duty of the 
governor to communicate pardons and commutations to a spe- 
cial session of the legislature.^^^ Three deal with extradition 
problems — the right of the governor to surrender a convict 
under sentence, upon a request for extradition,^^^ his duty to 
grant extradition under a United States statute,^^^ or upon the 
mere request of a foreign state.^°° The supreme court justices 
have also assisted extra- judicially in the consideration of ques- 
tions as to the power of the governor to order the removal from 
one county to another of a convict under death sentence,^^^ 
the power of a prison warden to discharge a prisoner without 
the'lexecutive pardon,^^^ and the nature of commutation.^"^ 

291 See pp. 76-78 supra. 

292 0pin. of the Justices, 120 Mass. 600. 

293 In re Opin. of the Justices, 190 Mass. 616; and In re Opin. of the 
Justices, 210 Mass. 609. 

29^ In re Pardoning Pov/er of Governor and Council, 85 iMe. 547. 

295 Opin.s of the Judges, etc., 4 R. I. 583. 

296 In re Advisory Opinion to Governor, 62 Fla. 7. 

297 In re Advisory Opinion to the Governor, 64 Fla. 21. 

298 In re Opinion of the Justices, etc., 201 Mass. 609. 

299 In the matter of Hughes, 61 N. C. 57. 

300 Respublica v. De Longchamps, 1 Dall. (Pa.) HI. 

301 Opin. of the Justices, 11 Gush. 604. 

302 Opin. of the Justices, 13 Gray, 618. 

303 In re Opin. of the Justices, 210 Mass. 609. 



136 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

In State v. Cleveland^^ the justices very reluctantly gave to 
the executive council their opinions as to whether a jury found 
a defendant guilty of murder in the first degree according to 
the statutes of the State. The statutory opinions in cases 
of conviction on a capital charge number eight — one in New 
York,^°^ seven in Oklahoma.^^^ As has already been noted,^°^ 
two of the referred cases in Oklahoma met with refusals, and 
the construction of the statute in In re Opinion of the Judges 
(8 Okla. Crim. 467) has undoubtedly limited its application to 
a considerable extent. Two other refusals should be mentioned. 
In In re Opinion of Supreme Court, 39 Florida, 397, the justices 
declined to tell the governor what the effect of pardons without 
the executive approval would be, because this did not involve 
an interpretation of the executive powers, or whether he had 
power to issue a death warrant, because this did involve the 
construction of a statute. A Colorado court has appUed this 
last excuse to a question as to the relation of the pardoning 
power to the paroling of prisoners.^^^ 

g. Miscellaneous. As in the case of the legislature, so 
here with the executive department, it has been found necessary 
to make a hodge-podge of opinions, for the most part unrelated 
and unclassifiable. Not a few (nine) deal with the powers and 
duties of various minor officials — of all civil and military ofl&cers 
under a particular Act of Congress,^^^ of the president of the 
senate when acting governor,^^" of jailers and other persons in 

3«58 Me. 564. 

^^ People V. Green, 1 Denio 614. 

30* State V. Johnson, 21 Okla. 40; In re Opin. of the Judges, 25 Okla. 
76; Opin. of the Judges, 3 Okla. Crim. 315; In re Opin. of the Judges, 4 Okla. 
Crim. 594; In re Opin. of the Judges, 6 Okla. Crim. 18; In re Opin. of Judges, 
6 Okla. Crim. 210; and In re Opin. of the Judges, 8 Okla. Crim. 467. 

3" See pp. 77-78 supra. 

3°8 In re Penitentiary Commissioners, 19 Colo. 409. 

3"^ Opin. of the Justices, 14 Gray, 614. 

310 Opin. of the Justices, 7 Me. 483. 



THE ADVISORY OPINION IN PRACTICE 137 

dealing with fugitive slaves,^^^ in advising a city board of police 
commissioners,^^ of the board of land commissioners,^^^ of 
the auditor of public accounts,^^^ of the attorney-general in 
appointing deputies,^^^ and of the board of pubHc lands and 
buildings as regards State institutions .^^^ Particular powers 
or duties of the governor are the subject matter of eight opin- 
ions — the power to hire legal agents to prosecute a military claim 
against the United States,^^^ the duty to arrange for the trans- 
portation of State officials,^^^ the power, in the absence of 
statute, to authorize legal proceedings at the expense of the 
State,^^^ or to alter highways at the expense of certain towns,^^^ 
the power to adjourn the legislature,^^^ or to summon it in special 
session,^^^ the duty to issue commissions.^^^ Finally there are 
opinions as to the liability of a county commissioner to impeach- 
ment,^^ the title of asylum trustees in asylum property ,^^^ the 
need of approval by the governor and council of appointments 
by a license boardj^^e ^^^^ existence of laws prohibiting racetrack 
gambHng,^^^ the effect of the suspension of a governor while 

^iiQpin.s of the Justices, etc., 46 Me. 561. 
^^2 In re Police Commissioners, 22 R. I. 654. 

3" In re Leasing of State Lands, 18 Colo. 359; and In re Canal Cer- 
tificates, 19 Colo. 63. 

31* In re Babcock, 21 Nebr. 500. 

315 In re Appropriations for Deputies, etc., 25 Nebr. 662. 

3iein re Board of Purchase and SuppHes, etc., 37 Nebr., 425. 

3"0pin. of the Justices, 72 N. H. 601. 

318 In re 0pm. of Justices, 74 N. H. 606. 

3" In re Opin. of Justices, 75 N. H. 624. 

320 In re Opin. of the Justices, 77 N. H. 606. 

321 Opin. of the Justices, 18 R. I. 824. 

322 In the matter of the Executive Communication, etc., 15 Fla. 739. 

323 In re Advisory Opin. to the Governor, 31 Fla. 1; and In re Opin. of 
the Justices, 68 Fla. 560. 

32* In re Opin. of the Justices, 167 Mass. 599. 
325 Opin. of Justices, 70 N. H. 638. 
32«Opin. of the Justices, 72 N. H. 605. 
327 In re 0pm. of the Justices, 73 N. H. 625. 



138 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

under impeachment, ^^^ the salaries and expenses of the State 
board of land commissioners,^^^ the administration of a par- 
ticular piece of State land,^^° and the nature of a railroad com- 
mission, if created.^^^ 

On the other hand there have been nine instances where 
the justices have declined to give any opinion. Refusal to 
construe an existing statute was the reason given in In the 
matter of Inquiries Submitted, etc., 58 Missouri, 369, (relating 
to the power of the governor to issue commissions) and In re 
HR. No. 25, 15 Colorado, 602, (concerning the powers of the 
State treasurer). In Advisory Opinion to the Governor, 61 
Florida, 1, the justices declared that the submission of proposed 
United States amendments to the legislature was not an exe- 
cutive duty caUing for their assistance. No opinion was re- 
turned by the Colorado justices to a question as to the powers 
of the board of land commissioners to extend mineral leases, 
because the private rights of lessees might be affected.^^^ An 
interrogatory relating to the powers and duties of a police com- 
mission was returned unanswered because the term of the in- 
quiring governor had expired, in Opinion of the Justices, 70 New 
Hampshire, 640. Lastly, the Minnesota justices have twice 
refused opinions — in Rice v. Austin, 19 Minnesota, 103, (re- 
garding the governor's duty to transfer land to the land com- 
missioners) and State v. Dike, 20 Minnesota, 363, (about the 
powers of the secretary of state) — on the ground that extra- 
judicial consultation of the justices was unauthorized by the 
constitution. It will be remembered that the refusal of the 
United States supreme court to answer Washington's questions 
upon the neutral duties of the executive department was based 
essentially upon this ground. The reason for the refusal in 

328 In the matter of the Executive Communication, etc., 14 Fla. 289. 
32* In re Questions by the Governor, 55 Colo. 105. 

330 In re Opin. of Judges, 13 S. D. 191. 

331 In re Railroad Commissioners, 15 Nebr. 679. 

332 In re Leasing of State Lands, 27 Colo. 99. 



THE ADVISORY OPINION IN PRACTICE 139 

In re Board of Sinking Fund Commissioners, 32 S. W. 414 (Ky.) 
— when the board of sinking fund commissioners petitioned 
for advice in connection with the State's prison — is unsatis- 
factory, for the chief justice waives the question of jurisdiction 
and contents himself with saying the court would be as much 
embarrassed in determining the questions as the commissioners. 
The question of jurisdiction is also left unsettled in In the matter 
of the Executive Communication, etc., 12 Florida, 653, where 
the justices avoided expressing an opinion as to the liabiUty 
of the governor to impeachment by an extra session of the 
legislature, by declaring there was not a quorum present anyway. 
Two opinions by the Canadian supreme court deal with 
particular powers of the governor-general — to make remedial 
orders on appeal from provincial statutes,^^^ and to grant U- 
censes.^** 

3. The Judiciary 

As might be expected the number of cases dealing with 
the third department of government is comparatively small. 
Of course in this section, as in the two following sections, it 
should be remembered that the interrogations which occasioned 
the opinions were, in verbis, questions as to legislative or exe- 
cutive powers. It is only when the consideration of these powers 
is quite subordinate and the emphasis is plainly upon some mat- 
ter which primarily affects judicial organization and procedure, 
or the electorate, that the opinion is adverted to under these 
heads. 

Most of the thirty-two opinions collected here are concerned 
with questions of organization — the tenure of justices of a 
police court or a justices' court,^^^ of justices of county courts,^^ 

333 In re Certain Statutes of . . . Manitoba Relating to Education, 22 
Can. S. C. R. 577. 

334 In re International and Inter-provincial Ferries, 36 Can. S. C. R. 206. 

335 0pin. of the Justices, 3 Custi. 584. 
33eOpin. of the Justices, 3 Gray, 601. 



140 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

of certain justices of the supreme court,^" of justices of the 
peace,^^^ of a circuit judge,^^® of county judges,^^ of certain 
district judges ;^^ legislative power to change the number or 
boundaries of judicial districts,^^ or the effect of such a change;^ 
the appointment or removal of various classes of judges;^ 
the eligibility of women,^^ or of a sheriff, deputy sheriff or 
coroner,^^^ or of a register of deeds, to be appointed justice 
of the peace ;^^ the effect of the creation of a new court upon a 
court already existing.^^ Several were prompted by questions 
about the jurisdiction or powers of different courts or judges — 
the power of a single judge to enter final judgment on a plea of 
guilty of murder in the first degree,^^ the power of inferior 
judges to instruct juries,^^^ the jurisdiction of justices of the 
peace,^^^ or of county courts in probate matters,^^^ and the pos- 

"^ In re Opin. of Judges, 23 R. I. 635; and In re Supreme Court Va- 
cancy, 4 S. D. 532. 

3'8 In the matter of the Executive Communication, etc., 15 Fla. 735. 

339 Advisory Opinion, etc., 16 Fla. 841. 

3^0 In re Opin. of the Justices, 68 Fla. 560. 

^*^ In re Opin. of the Justices, 69 Fla. 653; and In re Election of Dis- 
trict Judges, 11 Colo. 373. 

3" Opin. of the Judges, etc., 55 Mo. 215; and In the Matter of the 
Executive Communication, etc., 14 Fla. 320. 

3" In re SR. No. 9, 54 Colo. 429. 

^* In re Advisory Opinion to the Governor, 45 Fla. 154; In re Opinion 
of Justices, 67 Fla. 423; Opin. of the Justices, 67 Fla. 489; and In re Su- 
preme Court Vacancy, 4 S. D. 532. 

'« Opin. of the Justices, 107 Mass. 604. 

»*«Opin. of the Justices, 3 Me. 484. 

"' Opin.s of the Justices, etc., 68 Me. 594. 

'"Opin. of the Justices, 3 Gray, 601. 

"' Opin. of the Justices, 9 Allen, 585. In connection with this opinion 
see Green v. Commonwealth, 12 Allen, 155. 

«° In re Opin. of the Justices, 24 R. I. 625. 

"1 In the matter of the ConstitutionaUty of HB. No. 158, 9 Colo. 625. 

«' In re SR. Relating to SB. No. 31, 12 Colo 340. For the questions 
in this case see SJ. 1889, p. 1155. 



THE ADVISORY OPINION IN PRACTICE I4I 

sible jurisdiction of a court of appeals, if created.^^ Still 
others deal with jury problems — the constitutionality of certain 
restrictions as to jury trials/^ or of petit juries composed of 
less than twelve men, or of verdicts by less than twelve.^^^ 
The remaining questions are miscellaneous in character — the 
definition of justice of an inferior court,^^^ whether a judgment 
of the supreme court can be reversed by legislative enactment,^^^ 
the effect of the abolition of district courts,^^^ the constitution- 
ahty of the powers of a court of appeals as contained in a pending 
bill,^^^ the beginning of the term of a certain district court,^^^ 
and whether a county judge was a county officer within the 
meaning of the constitution.^^^ 

In the entire thirty-two opinions there are only two clear 
refusals, both by the same court in response to the same ques- 
tion — the extent of a Florida governor's powers in the appoint- 
ment of circuit judges under a statute.^^^ The dependence of 
the answer upon the construction of a law differentiated these 
cases from In re Opinion of Justices, 67 Florida, 423, and made 
a refusal certain. In one other case referred to above, there 
was a half-way refusal. When asked about the constitutionality 
of verdicts in civil cases by three-fourths of a jury, a Colorado 
court pointed out that they had aheady decided, in a case 
brought regularly before them, that the legislature was not 
restricted in dealing with jury trials in civil actions. ^^^ Now, 

5*' In re Constitutionality of a Court of Appeals, 15 Colo. 578. 
55* In re Opin. of the Justices, 207 Mass. 606. 

»" Opin. of the Justices, etc., 41 N. H. 550; and In re SB. No. 142, 
etc., 26 Colo. 167. 

356 0pin.s of the Justices, etc., 68 Me. 594. 

357 C^in. of the Supreme Court, 3 R. I. 299. 

358 Opin. of Court in Response to Governor, 43 Mo. 351. 

359 In the matter of the Constitutionahty of SB. No. 76, 9 Colo. 623. 
^nn re HR. Relating to HB. No. 218, etc., 12 Colo. 359. 

3" In re Compensation of County Judges, 18 Colo. 272. 
3*2 In re Opin. of the Justices, 69 Fla. 632; and In re Opin. of the Jus- 
tices, 69 Fla. 653. 

3«3 In re SB. No. 142, etc., 26 Colo. 167. 



142 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

they continued, it is not the practice of this court to review 
decisions in litigated cases, in ex parte proceedings; so we can 
express no further opinion. This is certainly not a refusal. 
In fact the legislature evidently was satisfied, for the bill was 
passed.^^ However, the reasonableness of such an answer 
is questionable. It is certainly not in line with the history of 
the advisory opinion, for it would make it impossible to answer 
many questions as to the "state of the law" on a particular 
point, since the "state of the law" does not depend on what a 
supreme court may do in the future but may well depend on 
what it has decided in the past.^^^ 

Twice the Canadian supreme court has answered judicial 
questions, once as to the jurisdiction of provincial county 
courts,^^^ once as to procedure under the criminal code.^®^ 
4. Sufrage and Elections. 

From a numerical standpoint, this is quite an important 
section. A full one-eighth of the opinions given under a con- 
stitutional requirement in the United States contain questions 
relating to elections or the exercise of the suffrage. Some in- 
quiries have been repeated in several different instances — the 
taxation quaUfication for voters,^^^ the property quaUfication,^®^ 
the residence qualification,"^ the registration requirement, ^^^ 

36*Sess. L. 1899, p. 244. 

365 See p. 256 infra. 

366 In re County Courts of British Columbia, 21 Can. S. C. R. 446. 

367 In re Criminal Code, 43 Can. S. C. R. 434. 

368 0pin. of the Justices, 11 Pick. 537; Opin. of the Justices, 5 Mete. 
591; In re the Providence Voters, 13 R. I. 737; In re the Realty Voters, 
14 R. I. 645; In re Canvassers' Powers, 17 R. I. 809; and Opin. to the 
Governor, 24 R. I. 630. 

369 In re the Voting Laws, 12 R. I. 586; In re the Newport Charter, 
14 R. I. 655; In re Qualification of Voters, 19 R. I. 614; and Opin. of the 
Justices, 31 N. C. App. 

370 Opin. of the Justices, 1 Mete. 580; Opin. of the Justices, 5 Mete. 587; 
Opin. of the Justices, 7 Me. 492; and Opin. of the Justices, 7 Me. 497. 

371 In re the Registry Laws, 12 R. I. 580; In re the Polling Lists, 13 
R. I. 729; In re the Constitutional Amendment, 16 R. I. 754; and Opin. 
of the Justices, 22 R. I. 651. 



THE ADVISORY OPINION IN PRACTICE 143 

the form of ballots,^^^ and the form or effect of official returns. ^^^ 
The introduction of voting machines has prompted inquiries 
in three instances/^^ and the so-called soldiers' voting acts 
of the Civil War in four.^^^ In two cases the justices have 
given advice as to the rights of towns or districts to waive the 
sending of representatives to the legislature.^^^ The right of 
particular classes of people to exercise the suffrage is the subject 
matter of four opinions — of inhabitants of unincorporated 
plantations,^^^ of paupers or indigent persons,"^ of negroes,^^^ 
and of certain foreign-born residents in territory acquired by 
treaty .^^° Other questions are of a miscellaneous character — 
the effect of paying a special poll tax upon the right to vote,^^^ 
the constitutional date for the election of representatives,^^^ 
whether annexation to towns confers a right to vote for the 
representatives from those towns/^ the power of the governor 

s'^Opin. of the Justices, 7 Me. 492; Opin. of the Justices, 7 Me. 497; 
Opin. of the Justices, etc., 64 Me. 596; In re the Ballot Act, 16 R. I. 766; 
and In re the Ballot Pro\T[sion, 17 R. I. 825. 

373 Opin. of the Justices, etc., 25 Me. 567; Statement of Facts, and 
Questions, 38 Me. 597; Opin.s of the Justices, etc., 68 Me. 587; Questions 
Submitted, etc., 70 Me. 560; and Statement and Questions Submitted, etc., 
70 Me. 570. 

374 In re HB. No. 1291, 178 Mass. 605; 0pm. of the Justices, 19 R. I. 
729; and In re Votmg Machmes, 23 R. I. 630. 

375 Opin. of the Justices, 44 N. H. 633; Opin. of the Justices, etc., 45 
N. H. 595; Opin. of the Judges, etc., 30 Conn. 591; and Opin. of the 
Judges, etc., 37 Vt. 665. 

376 Opin. of the Justices, 15 Mass. 536; and Opin. of the Justices, 6 
Me. 486. 

37 7 Opin. of the Justices, 3 Mass. 568. 

378 Opin. of the Justices, 7 Me. 497. 

379 Opm.s of the Justices, etc., 44 Me. 505. 

380Opm.s of the Justices, etc., 68 Me. 589; there are two separate 
interrogatories here. 

381 Opin. of the Justices, 18 Pick. 575. 

382 Opin. of the Justices, 23 Pick. 547. 

383 Opin. of the Justices, 6 Cush. 578. 



144 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

or aldermanic boards to recount ballots in contested elections,^^ 
the effect of making a grant of municipal suffrage to women 
conditional upon the approval of a majority of a certain class 
of voters,^^ the power of the legislature to permit women to 
vote upon a proposed constitution,^^ or to divide towns into 
voting districts,^^^ or to provide a special election for delegates 
to a constitutional convention,^^^ the governor's right to reject 
illegal ballots,^*^ the legaUty of certain irregular votes,^^° the 
form of a petition for a referendum,^^^ the legaHty of election 
by pluralities,^^^ the power of a town council to order a new 
election,^^^ the method of marking the ballot,^^^ the legality 
of an order for a new election,^^^ the procedure in an election 
by both houses of the legislature,^^^ the power of a city council 
to elect the school committee,^^^ and the control of nominations 
by political parties.^^^ 

Two things are worthy of notice. All but eight of these 
fifty-seven opinions come from three States — Massachusetts, 
Maine and Rhode Island. This third midget State alone 
furnishes twenty-one of them (nearly haK of the total number 
of advisory opinions found in the Rhode Island reports), while 
Colorado with its total of ninety-two is represented here by 
a single one. Secondly, there are no refusals. Apparently 

384 0pin. of the Justices, 136 Mass. 583. 

385 In re Municipal Suffrage to Women, 160 Mass. 586. 
38«In re Opin. of the Justices, 115 N. E. 921 (Mass.). 

387 In re Opin. of the Justices, 73 N. H. 618. 

388 In re Opin. of the Justices, 76 N. H. 586. 

389 Opin. of the Justices, 54 Me. 602. 

390 Opin.s of the Justices, etc., 64 Me. 588. 

391 In re Opin. of the Justices, 114 Me. 557. 

392 In re the Plurality Elections, 15 R. I. 617. 

393 In re the Narragansett Election, 16 R. I. 761. 

394 In re the Vote Marks, 17 R. I. 812. 

395 In re the Representative Election, 17 R. I. 820. 

396 Opin. of the Justices, 18 R. I. 824. 

397 In re Election of School Committee, etc., 28 R. I. 629. 

398 In the matter of HB. No. 203, 9 Colo. 631. 



THE ADVISORY OPINION IN PRACTICE 145 

questions concerning the suffrage or electoral matters are, as 
a rule, "important questions" within the meaning of an ad- 
visory opinion clause in the constitution. This point is not 
discussed in any of these opinions, nor is any doubt suggested 
as to the solemnity of the occasion. 

5. Miscellaneous. 

Nineteen opinions have been relegated to this congeries of 
odds and ends. Eleven of these have to do with problems 
connected with the amendment of the State constitution, but 
in only eight instances did the justices advise on the point 
referred — the power of the legislature to call a convention to 
amend the constitution,^^^ or to determine the mode of sub- 
mission of amendments to the people,*^'^ or to make a new 
apportionment apply to the election of delegates to a constitu- 
tional convention ;^°^ the powers of a constitutional convention 
called to propose special amendments, and the possibiHty of 
extra-constitutional methods of amendment,^^^ the effect of 
a decree of the convention as to the time for amendments to 
take effect,^^^ the time when an amendment adopted by popular 
vote takes effect,^°* the extent of pubHcity required for amend- 
ments proposed to the people,^^^ the form of such amendments 
and the effect of a popular adoption of two contradictory 
amendments. ^°® But the necessity of construing a statute 
prevented the Florida justices from telUng the governor whether 
the legislature had duly passed an amendment to be submitted 
to the people,^^^ and the Colorado supreme court has twice 

399 In re the Constitutional Convention, 14 R. I. 649. 

400 In re Opinion of Supreme Court, 29 R. I. 611. 

"1 Deb. Mass. Conv. 1853, 1, 138; Jameson, Constitutional Conventions, 
p. 663. 

"2 Opin. of the Justices, 6 Cush. 573. 

^o^ Opin. of the Justices, 76 N. H. 612. 

404 In re Advisory Opinion to the Governor, 34 Fla. 500. 

4» In re HR. No. 10, 50 Colo. 71. 

4o«In re Senate FUe 31, 25 Nebr. 864. 

*" In re Advisory Opin. to the Governor, 64 Fla. 1. 



146 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

refused an opinion upon the constitutionality of bills connected 
with proposed amendments because the question was not 
sufficiently definite and the pending bill not far enough ad- 
vanced.^°^ 

Of the remaining eight cases, two deal with the care of 
paupers, under a statu te^°^ or in unincorporated places ;^^° two 
with county powers and habiUties,^^^ two with problems of 
municipal government ;^^2 one with the amount of mileage and 
the choice of routes permitted to members of the legislature;^^ 
and one was a request that the justices draft a schedule of Eng- 
Ush statutes then in force in the State of Pennsylvania.^^^ In 
the New Hampshire case just referred to, an opinion was re- 
fused on the ground that a reply could not be of assistance to 
the interrogator and so the question did not come within the 
advisory opinion clause. 

C. Form of Retlies 

Of the eight States in which the advisory opinion clause 
has found constitutional recognition, only four have set forth 
any requirements as to the form which such opinions must 
take. In Rhode Island and Florida, they must be made in 
writing, and the same result is necessarily attained in Missouri 
and Colorado by the provision that they must be pubUshed in 
connection with the regular decisions of the court. As a matter 
of fact, however, probably because of the judicial propensity 
for exactness and dependence upon precedent, as well as from 

408 In re HB. No. 495, etc., 26 Colo. 182; and In re SR. No. 7, etc., 
29 Colo. 350. 

409 Opin. of Justices, 1 Mete. 572. 

«o Opin.s of the Justices, etc., 68 Me., 593. 

4" In the matter of the Executive Communication, etc., 13 Fla. 687; 
and In re Funding of County Indebtedness, 15 Colo. 421. 

«2 0pm. of the Justices, 67 N. H. 601; and Opin. of the Justices, 52 
Me. 595. 

«3 Opin.s of the Justices, etc., 69 Me. 596. 

4^* Report of the Judges, etc., 3 Binney 595. 



THE ADVISORY OPINION IN PRACTICE 147 

force of habit, advisory opinions have been rendered in writing^ 
and, except in a few early cases, have been preserved in the 
regular reports. 

But even at the present time there is some variation in the 
form of opinions in different States, and this variation was much 
more marked when the advisory opinion was in its infancy 
(in the United States). The Enghsh practice exercised con- 
siderable influence in Massachusetts, not only upon the extent 
of extra-judicial consultation permitted,^^^ but also upon the atti- 
tude of the judges and the manner of their responses. In the 
first opinion given^^^ (in 1781), the justices not merely expressed 
their sensibihty of the honor done them by such a reference,^^ 
but they actually came into the senate to dehver their several 
opinions in person.^^ This is unique. In the next few cases, 
the opinions are informally communicated in a letter-like docu- 
ment signed by all the justices. Gradually this borrows from 
the more studied formaHty of regular decisions and develops 
into an impersonal exposition of the law touching the questions 
submitted. It differs, however, from the decisions in htigated 
cases, in that the signatures of the advisers are still appended, 
after the epistolary model. This is the standard form in most 
of the Massachusetts cases, and, after the practice becomes 
settled, is followed in New Hampshire, Maine, Rhode Island, 
Missouri, Florida, and South Dakota as well. But in Colorado 
the opinions are recorded as given per Curiam. ^^ The reader 

^^^ Qmte possibly the request in the first opinion, of 1781 (126 Mass. 
547), that the repUes be made in writing to the houses of the Massachusetts 
legislature had something to do with starting them off right. 

*i^ See pp. 31-33 supra. 

«7 Reported in 126 Mass. 547. 

*i8 Cf. Report of the Judges, etc., 3 Binney, 595. 

*^^ Cf. the appearance of the judges before the Rhode Island General 
Assembly in Trevett v. Weeden — ^Thayer, Cases, I, 73. 

«o So, too, in Opin. of the Justices, 70 N. H. 640; In re Probate Blanks, 
71 N. H. 621; In re Construction of Revenue Law, 2 S. D. 58; and In re 
Construction of School Law, Ch. 9, s. 7, 2 S. D, 71. 



148 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

should recall that the advisory opinion clause of the Colorado 
constitution imposes the duty of replying upon the supreme 
court, while in all the other States the opinions are to be given 
by the justices of the supreme court.^^ The judges have 
taken this quite literall}^^ and these curial decisions are the 
result.^^ This is varied somewhat in nearly a score of instances, 
where, because the questions called for more than the usual 
categorical replies, the writing of the opinion has been entrusted 
to some one justice, as in ordinary judicial proceedings; here 
the opinion is dehvered by the justice who composed it, "for 
the court. "^ A similar course has been pursued in a few cases 
in other States.^ 

*2i See p. 51 supra. 

«2ln the matter of the Constitutionality of SB. No. 65, 12 Colo. 466; 
In re Priority of Legislative Appropriations, 19 Colo'. 58; and see pp. 221-22 
infra. 

*23 Cf. the two Florida cases where the opinions are given "in banc," 
and signed by all the justices — In re Opin. of Justices, 54 Fla. 136; and 
Advisory Opin. to the Governor, 61 Fla. 1. 

«* In the matter of the Consritutionality of SB. No. 65, 12 Colo. 466; 
In re Appropriations by General Assembly, 13 Colo. 316; In re Funding of 
County Indebtedness, 15 Colo. 421; In re Speakership of the House of 
Representatives, 15 Colo. 520; In re Continuing Appropriations, 18 Colo. 
192; In re Loan of School Fund, 18 Colo. 195; In re Leasing of State Lands, 

18 Colo. 359; In re Priority of Legislative Appropriations, 19 Colo. 58; In re 
Canal Certificates, 19 Colo. 63; In re Governor's Proclamation, 19 Colo. 
333; In re Amendments of Legislative Bills, 19 Colo. 356; In re Penitentiary 
Commissioners, 19 Colo. 409; In re Fire and Excise Commissioners, 

19 Colo. 482; In re Constitutionality of SB. No. 293, 21 Colo. 38; In re State 
Board of Equalization, 24 Colo. 446; In re House Resolution No. 10, 50 
Colo. 71; In re Interrogatories of the Senate, 54 Colo. 166; In re Questions 
of the Governor, 55 Colo. 17. 

*25 Opin. of the Judges, etc., 55 Mo, 215; In the matter of Inquiries 
Submitted, etc., 58 Mo. 369 (practically); In the matter of the Executive 
Communication, etc., 12 Fla. 651; In the matter of the Executive Communi- 
cation, etc., 12 Fla. 686; In the matter of the Executive Communication, 
etc., 14 Fla. 283; In the matter of the Executive Communication, etc., 14 
Fla. 285; In the matter of the Executive Communication, etc., 14 Fla. 318; In 
the matter of the Executive Communication, etc., 14 Fla. 320; In the matter 



THE ADVISORY OPINION IN PRACTICE 149 

When the "justices" are requhed by the constitution to 
give their "opinions" these curial opinions would seem to be 
inadmissible. The prototypal advisory opinions in the Enghsh 
constitution were certainly upon an individuahstic basis, the 
judges advising not as an organ of the state but as members 
of the council.'*^^ The judges of the high court still give their 
opinions seriatim to the House of Lords and the Canadian 
justices usually follow the same rule in giving advisory opinions. 
Of course, if the judges are of one mind, there is no reason why 
more than one opinion should be submitted, provided it be clear 
that it is the opinion of each judge, as in the standard form in 
use in the States referred to above.^^ It need scarcely be 
added that both curial and signed unanimous opinions will 
commonly be the work of a single draftsman.^^ But if there 
is disagreement among the justices, either as to the reasoning 
or the conclusions, it will necessitate separate opinions.^^ 
This was the practice in England^^ but in the early cases in 

of the Executive Communication, etc., 15 Fla. 735; Advisory Opin., etc., 16 
Fla. 841; and In re Executive Commimication, etc., 23 Fla. 297. 

«« Cf. Paty's Case (14 East 92 n.), Prince of Wales' Case (Fortescue, 
401). 

*27 Cf. the opinion in Sackville's Case, 2 Eden, 371. 

<28 Cf. the note of the reporter to Opin. of the Justices, 52 N. H. 622, 
concerning the modus operandi m Judicial Opin., 35 N. H. 579, where there 
was a single opinion signed by all the judges: "No authorities were cited in 
the opinion as finally drawn up for pubhcation, but before the consultation 
an elaborate opinion had been prepared by one of the members of the court, 
reviewing at length all the authorities . . . which patience and industr}^ could 
collect. This opinion was read in consultation, the authorities were care- 
fully considered, the opinions of the judges were taken seriatim, and the court 
were unanimous." 

*2' "If the questions proposed to the justices came before us as a court 
and I found myself imable to agree with my brethren, I should defer to 
their opinion without any intimation of dissent. But the understanding 
always has been that questions like the present are addressed to us as in- 
dividuals and require an individual answer." — per Holmes, J., in In re 
Municipal Suffrage to Women, 160 Mass. 586. 

*^^ Paty's Case and Prince of Wales' Case, uhi supra. 



150 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

this country, even when separate opinions were given, dissenting 
opinions were sometimes omitted from the advice sent to the 
executive or legislative department, ^^ the judges apparently 
thinking the opinion of a majority was conclusive. But in 
two instances^^ the Maine legislature promptly ordered the 
dissenting justices to send in their opinions as well, and in the 
first of these cases actually proceeded in conformity with the 
dissenting opinion. Since Constitutional Law, 35 Maine, 
563, there has been no case where a justice has failed to send 
in an individual opinion or indicate his approval of some other 
opinion. 

Indeed there are quite a good many cases where two or more 
opinions have been submitted, usually because of disagree- 
ment,^ but sometimes even when the opinions are practically 
the same."*^ In a few cases there are separate replies con- 
taining a refusal to express any opinion on the question in 

*^^ For example see Opin. of the Justices, 3 Me. 484; Opin. of the Justices, 
6 Me. 506; and later Opin. of the Court, 60 N. H. 585. 

*32 Opin. of the Justices, 6 Me. 486; and Constitutional Law, 35 Me. 563. 

*" In re Municipal Suffrage to Women, 160 Mass. 586; Opin. of the 
Justices, 166 Mass. 589; In re HB. No. 1291, 178 Mass. 605; In re Opin. 
of the Justices, 211 Mass. 608; In re Opin. of the Justices, 77 N. H. 611; 
Opin.s of the Justices, etc., 18 Me. 458; Opin.s of the Justices, etc., 44 Me. 
505; Opin.s of the Justices, etc., 46 Me. 561; Taxation of National Banks, 
53 Me. 594; State v. Cleveland, 58 Me. 564; Opin.s of the Justices, etc., 
64 Me. 588; Opin.s of the Justices, etc., 62 Me. 596; In re Opin. of the Jus- 
tices, 99 Me. 515; Opin. of the Justices, 19 R. I. 729; In re Ten Hour Law, 
etc., 24 R. I. 603; Opin. of Supreme Court Judges, etc., 55 Mo. 295; In the 
matter of the Executive Commimication, etc., 12 Fla. 689; In the matter 
of the Executive Communication, etc., 14 Fla. 289; In re Advisory Opinion 
to Governor, 62 Fla. 7; and In re Opin.s of the Justices, 69 Fla. 632. 

*^* In re Municipal Fuel Plants, 182 Mass. 605; In re Opin. of the Jus- 
tices, 220 Mass. 627; Opm. of the Justices, etc., 41 N. H. 553; In re Opin. 
of Justices, 74 N. H. 606; Opin.s of the Justices, etc., 44 Me. 505; Opin.s 
of the Justices, etc., 46 Me. 561; Opin.s of the Justices, 54 Me. 602; Opin.s 
of the Justices, 58 Me. 590; Questions Submitted, etc., 72 Me. 542; In re 
Decision of Justices, 28 R. I. 607; Opin. of the Court, etc., 49 Mo. 216; 
In the matter of the Executive Conmaimication, etc., 12 Fla. 653; In the 



THE ADVISORY OPINION IN PRACTICE 151 

the reference.^^ Even where the duty of giving opinions is 
imposed upon the court instead of the justices, there is no reason 
why separate opinions should not be given, as in litigated cases. 
In fact there are two examples of this in Colorado.^^ Difficult 
situations may arise, however, when the majority think that 
no opinion should be given, while the minority believe the 
question submitted is within the advisory opinion clause. 
Where the giving of advice is made an individual duty, on 
principle the minority justices should be free not only to say 
the reference is within the constitution, but also to express 
their opinions.^" On the other hand, if the advice is looked 
upon as coming from the court, and if the power to refuse 
opinions exists at aU,^^^ probably the judgment of the majority 
upon the question of answerabihty should prevail. Apparently 
this is the view adopted in In re Interrogatories of the Senate, 
54 Colorado, 166, by the two dissenting justices, who confine 
their repUes to a disapproval of the court's refusal to give 
the opinions asked. 

This misapprehension as to the force of majority agree- 
ment in advisory opinion cases has cropped out occasionally 
in other States. The failure to include dissenting opinions 
in Maine^^ was evidently the result of an assumption that the 

matter of tlie Executive Communication, etc., 13 Fla. 687; In the matter 
of the Executive Communication, etc., 13 Fla. 699; In the matter of the 
Executive Commimi cation, etc., 14 Fla. 277; and In the matter of the 
Executive Communication, etc., 15 Fla. 739. 

^ In re Opin. of Justices, 74 N. H. 606; 0pm. of the Justices, 58 Me. 
590; Opin.s of the Justices, 95 Me. 564; and In re Opui. of the Justices, 103 
Me. 506. 

«6 In re SB. Providing for a Board of Pubhc Works, etc., 12 Colo. 188; 
and In re Interrogatories of the Senate, 54 Colo. 166. 

«^ Cf. Opin.s of the Justices, 95 Me. 564; and In the matter of the 
Executive Communication, etc., 14 Fla. 289. 

«8 See pp. 161-77 infra. 

«9 Opin. of the Justices, 3 Me. 484; Opin. of the Justices, 6 Me. 486; 
and Opin. of the Justices, 6 Me. 506. 



152 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

majority opinion would, of course, be followed. In another 
case^° where one justice was out of the country, the chief 
justice states that he has consulted only the other justice, 
"by whom he is authorized to state the following, as the opinion 
of a majority of the court." Even the adoption of the opinion 
of a single dissenting justice as the guiding principle for the 
legislature^^ did not bring home their mistake to them, for 
two opinions of 1878^ were delivered by the chief justice as 
the '^ opinion of a majority of the justices." This erroneous 
position may have been a corollary of the Maine theory that 
the opinions of the court were binding upon the interrogators."*^ 
At all events it has now disappeared in Maine,"^ and has found 
favor in no other State^^ save Colorado, and there only as apply- 
ing to the determination of the duty to give an opinion upon 
the question asked. *^ 

There are five opinions anomalous in form which might be 
mentioned in closing this discussion. Twice, when the exigency 
of the occasion necessitated prompt replies, the New Hampshire 
justices have returned categorical answers to the legislative 
inquiries, supplementing these later with a more lengthy dis- 
cussion.^^ Then there is a peculiar case in Maine,^^ where, 

*^o Opin, of the Justices, 3 Me. 487. 

*4i In Opin. of the Justices, 6 Me. 486. 

"2 Opin. s of the Justices, etc., 68 Me. 593; and Opin.s of the Justices, 
etc., 68 Me. 594. 

^*^ Statement and Questions Submitted, etc., 70 Me. 570. 

^ Opin.s of the Justices, 95 Me. 564. 

*** In In the matter of the Executive Communication, etc., 12 Fla. 689, 
one justice dehvered an opinion for the "majority," but a dissenting opinion 
was also included. In In re Opin, of the Justices, 193 Mass. 605, and Opin. 
of the Justices, 196 Mass. 603, a majority opinion is stated in the headnote 
as the principle decided, but this is doubtless an error of the reporter and 
not of the court. 

*^ In re SR. No. 10, Concerning Governorship Contest, 33 Colo. 307; 
and In re Interrogatories of the Senate, 54 Colo. 166. 

^^ Opin. of the Justices, etc., 45 N. H. 595; and In re Opin. of the Jus- 
tices, 66 N. H. 629. 

*^8 0pin. of the Justices, 6 Me. 514. 



THE ADVISORY OPINION IN PRACTICE 153 

it appears, the same questions were referred by the acting 
governor and by the senate, and two justices repUed to the former 
while the third sent a concurrent opinion to the latter. Almost 
as strange is the opinion of a soHtary justice in In re Election 
of District Judges, 11 Colorado, 373. Finally there is a com- 
paratively recent opinion in Rhode Island^^ which is altogether 
unsigned — quite probably an oversight. 

D. Efpect of Replies upon Interrogators 

Historically, the justification of the advisory opinion is 
to be found in its value to the legislative and executive depart- 
ments of the state. In theory, it is the judicious counsel, 
upon questions of a legal nature, given by men who are by train- 
ing and experience especially fitted for the solution of such ques- 
tions. It is entitled to receive only such consideration as its 
intrinsic qualities merit. It is spoken not ex cathedra but as a 
private recommendation. Furthermore it is often given under 
circumstances far from favorable to the production of good 
opinions. "(Questions) are perhaps almost necessarily pre- 
sented under circumstances indicating that an opinion is ex- 
pected speedily. And they are received, when the mind, 
having been greatly exhausted by the pressing labors of other 
official duties, no longer possesses its natural vigor, and cannot 
exercise even its accustomed extent of thought or power of 
reason. And it cannot be allowed the time for that extensive 
research and patient examination and reflection, which the im- 
portance of the questions, often a Httle aside from the range 
of its accustomed studies and duties, may demand. And it 
is not excited to action and aided by the elaborate examination 
and forcible reasoning of other minds which have been inter- 
ested to examine and argue them. Opinions formed under 
such circumstances can scarcely claim the respect which might 

"9 In re Abolishing School Districts, 27 R. I. 598. 



154 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

be readily yielded to those formed under more favorable aus- 
pices, "^o 

Yet in practice, in the United States, advisory opinions 
have been received, for the most part, with all the deference 
accorded to the solemn decisions of a court of last resort. Both 
the legislative department and the executive department 
have usually treated the pronouncements of these opinions 
as final, and shaped their course of action accordingly. It 
is to be expected that this would be true of a majority of the 
cases, since the advice, even though not binding, bears the 
stamp of experts. Also, from a purely practical standpoint, 
the interrogator would tend to follow the advice given, since 
he realizes that if the same matter is brought before the same 
individuals, as a court, in regular judicial proceedings, there is 
a strong probability that the principles announced in the 
extra-judicial opinion will be adopted in the' judicial decision; 
and in fact this has often been done, as will be seen in examining 

the effects of advisory opinions within the judiciary department 
itself.451 

It will be worth while to make a detailed investigation, in 
Colorado, of the effect of extra-judicial advice upon the activi- 
ties of the legislature and governor. On fifty-eight occasions 
the legislature has referred to the justices questions concerning 
pending measures. Eleven of these met with refusals, so 
that subsequent legislative action is immaterial to this inquiry. 
Among the forty-seven remaining, there is not a single instance 
where the interrogating legislature took any action in opposition 

*5°C)pin. of the Justices, 16 Me, 479. Cf. the words of ex- Justice 
Morton: "They are called upon to give an opinion, when loaded down with 
labor, and almost always under circumstances when the question requires 
to be immediately answered. They have to put off all other things and 
attend to this, as well as they may, without a hearing, without argument, 
and without time to investigate authorities, and very likely in a remote 
part of the Commonwealth, where they are not able to get authorities. " — 
Deb. Mass. Conv. 1853, II, p. 694. 

**^ See pp. 233-36 infra. 



THE ADVISORY OPINION IN PRACTICE 155 

to the opinion submitted by the justices.^^^ In twenty-five 
cases the justices approved the constitutionality of the bills 
sent to them and the bills were subsequently enacted into 
law, or at least approved by the interrogating ho use. *^^ There 
are three examples of failure to pass a bill after the justices had 
expressed their satisfaction as to constitutionaHty,^^ but this 
of course does not signify that the legislature disagreed with 
the justices on that point. In another case a bill was dropped 
after favorable answers on a point of procedure and one of 
construction.^^ In the other twenty-two opinions, the repUes 

^2 In one instance a legislature passed an act disapproved in an opinion 
given four years earlier. Cf. Sess. L. 1899, 232, with In re HB. No. 203, 21 
Colo. 27, and In re a Bill Providing that Eight Hours Shall Constitute a 
Day's Labor, 21 Colo. 29, and see In re AppHcation of Morgan for Writ of 
Habeas Corpus, 26 Cclo. 415. 

«3 In the matter of the Constitutionality of HB. No. 18, 9 Colo. 623— 
Sess. L. 1887, 340; In the matter of HB. No. 231, 9 Colo. 624r— Sess. L. 1887, 
247; In the matter of the Constitutionality of HB. No. 158, 9 Colo. 625— 
Sess. L. 1887, 56; In the matter of HB. No. 203, etc., 9 Colo. 631— Sess. L. 
1887, 347; In the matter of HB. No. 38, etc., 9 Colo. 631— Sess. L. 1887, 
250; In the matter of SR.— m Relation to SB. No. 56, 9 Colo. 632— S J. 
1887, 2057; In re SB. Providing for a Board of Public Works, etc., 12 Colo. 
188— Sess. L. 1889, 124; In re HR. Relating to HB. No. 116, 12 Colo. 289— 
HJ. 1889, 2029; In re SR. Relating to SB. No. 1, 12 Colo. 290— Sess. L. 
1889, 228; In re HB. No. 238, 12 Colo. 337— Sess. L. 1889, 360; In re SR. 
Relatmg to SB. No. 31, 12 Colo. 340— Sess. L. 1889, 238; In re Constitu- 
tionaUty of a Court of Appeals, 15 Colo. 578— Sess. L. 1891, 118; In re 
Kindergarten Schools, 18 Colo. 234— Sess. L. 1893, 436; In re Bounties, 
18 Colo. 273— Sess. L. 1893, 23; In re Internal Improvements, 18 Colo. 
317— SJ. 1893, 1642, SJ. 1893, 1179, HJ. 1893, 1994, SJ. 1893, 1233, HJ. 
1893, 2211; In re Governor's Proclamation, 19 Colo. 333— Sess. L. 1894, 3; 
In re Amendments of Legislative Bills, 19 Colo. 356 — Sess. L. 1894, 45; In re 
Constitutionahty of Substitute for SB. No 83, 21 Colo 69— Sess. L. 1895, 
36; In re Inheritance Tax, HB. No. 122, 23 Colo. 492— HJ. 1897, 874; In re 
SR. No. 4, 54 Colo. 262— SJ. 1913, 771 and 1293. 

*^* In the matter of HR. re Constitutionahty of Legislation Redistricting 
State, etc., 12 Colo. 186; In re SR. Relating to Constitutionahty of Proposed 
Reapportionment Bill, 12 Colo. 187; and In re Constitutionahty of SB. No. 
69, 15 Colo. 601— SJ. 1891, 1062. 

«* In re SR. No. 9, 54 Colo. 429. 



156 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

were unfavorable and the bills either failed,^^^ or were modified 
to meet the objections raised by the justices.^" Quite often 
the individual responsible for the bill or the committee in charge 
of it has moved that it be laid on the table because the supreme 
court had declared it unconstitutional.^^^ In other instances 
the bills came to a vote and were lost.^^^ Sometimes they 

^*^ In the matter of the Constitutionality of SB. No. 76, 9 Colo. 623 — 
SJ. 1887, 309; In the matter of HB. No. 166, etc., 9 Colo. 628; In the matter 
of. a Bill for an Act, etc., 9 Colo. 629— SJ. 1887, 1074 and 1078; In the matter 
of the Constitutionality of HB. No. 270 and SBB. No. 69 and No. 106, 9 
Colo. 635— S J. 1887, 1665-6 and 2104, and HJ. 1887, 1612; In the matter 
of the ConstitutionaHty of S. 9 of HB. No. 122, 9 Colo. 639— HJ. 1887, 1745 
and 1762; In re House Resolutions Concerning Street Improvements, 15 
Colo. 598; In re HB. No. 10, etc., 15 Colo. 600; In re Loan of School Fund, 
18 Colo. 195; In re Compensation of County Judges, 18 Colo. 272 — SJ. 1893, 
658; In re HB. No. 203, 21 Colo. 27— HJ. 1895, 633; In re a Bill Providing 
that Eight Hours Shall Constitute a Day's Labor, 21 Colo. 29— HJ. 1895, 
723; In re Constitutionality of SB. No. 293, 21 Colo. 38— SJ. 1895, 633; 
In re Constitutionality of an Act, 21 Colo. 46; In re ConsoHdation of School 
Districts, SB. No. 23, 23 Colo. 499; In re Annexation and ConsoHdation ot 
School Districts, SB. No. 9, 26 Colo. 136; In re HR. No. 10, 50 Colo. 71— 
HJ. 1911, 704. 

^^ In the matter of the ConstitutionaHty of HB. No. 270 and SBB. 
No. 69 and No. 106, etc., 9 Colo. 635— HJ. 1887, 1612, and Sess. L. 1887, 
340; cf. In the matter of the ConstitutionaHty of SB. No. 76, 9 Colo. 623, 
with In re ConstitutionaHty of a Court of Appeals, 15 Colo. 578 — Sess. L. 
1891, 118; In re SR. Relating to Internal Improvement Fund, ' tc, 12 Colo. 
285— SJ. 1889, 1023 and 1413, HJ. 1889, 2529, and Sess. L. 1889, 215, S. 7; 
In re HR. Relating to HB. No. 349, 12 Colo. 395— HJ. 1889, 2192; In re 
HB. No. 165, 15 Colo. 593, 595— Sess. L. 1891, 268; In re Extension of 
Boundaries, etc., 18 Colo. 288— Sess. L. 1893, 131, see S. 2 on p. 135. 

«« In the matter of the ConstitutionaHty of SB. No. 76, 9 Colo. 623— 
SJ. 1887, 309; In the matter of the ConstitutionaHty of HB. No. 270 and 
SBB. No. 69 and No. 106, etc., 9 Colo. 635— SJ. 1887, 1665-6, and HJ. 
1887, 1612; In re Compensation of County Judges, 18 Colo. 272— SJ. 1893, 
658, and cf. ibid. 822; In re HB. No. 203, 21 Colo. 27— HJ. 1895, 633; In 
re a Bill Providing that Eight Hours ShaH Constitute a Day's Labor, 21 
Colo. 29— HJ. 1895, 723; In re House Resolution No. 10, 50 Colo. 71— H J. 
1911, 704. 

*59In the matter of a BiU for an Act, etc., 9 Colo. 629— SJ. 1887, 1074, 



THE ADVISORY OPINION IN PRACTICE 157 

simply died a natural death. When the subject matter was 
deemed sufficiently important the legislature has preferred 
to resort to the process of constitutional amendment rather 
than waste time in passing measures which the justices had 
frowned upon. For example, after several attempts to enlarge 
the powers of the city of Denver, and to consohdate school 
districts therein with contiguous districts,^^^ a comprehensive 
amendment to the constitution was proposed and adopted as 
Article XX, on November 4, 1902. However, in connection 
with the eight hour law, the adverse opinions of In re HB. 
No. 203, 21 Colorado, 27, and In re a Bill Providmg that Eight 
Hours Shall Constitute a Day's Labor, 21 Colorado, 29, were 
not sufficiently compeUing, and it required a formal decision'^^^ 
to bring about the constitutional amendment proposed in 
Session Laws 1901, page 108, and adopted at the following 
election. 

Turning to the executive department, it is obviously much 
more difficult to ascertain the precise effect of advisory opinions 
upon executive action. That must await the writing of a de- 
tailed financial history of the State, embodying the results of 
an examination of hundreds of auditor's and departmental 
reports and thousands of warrants and the relating of these 
to appropriation and revenue bills and treasurer's reports; 
for the most important of the gubernatorial interrogatories 
have had to do with the administration of State finances. 
Still we can find evidences here and there that the members 
of the executive department have had great respect for extra- 
judicial advice. How unreservedly successive governors have 
followed the doctrine as to excess appropriations laid down in 
In re Appropriations by General Assembly, 13 Colorado, 

1078; In the matter of the Constitutionality of s. 9 of HB. No. 122, 9 Colo. 
639— HJ. 1887, 1745, 1762. 

«" In re ConstitutionaUty of SB. No. 293, 21 Colo. 38; In re ConsoUda- 
tion of School Districts, SB. No. 23, 23 Colo. 499; and In re Annexation and 
Consohdation of School Districts, SB. No. 9, 26 Colo. 136. 

*^i In re AppHcation of Morgan for Writ of Habeas Corpus, 26 Colo. 415 



158 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

316, has already been pointed out.^^^ Another illustration is 
at hand in In re Fire and Excise Commissioners, 19 Colorado, 
482. In attempting to remove the fire and excise commis- 
sioners of Denver from office, the governor had met with armed 
resistance and had summoned the mihtia forces to aid him. 
While conflict was imminent, the governor paused to ask the 
justices of the supreme court who were the lawful fire and ex- 
cise commissioners. In their reply, the justices stated that, 
assuming the facts as given by the governor, he had lawfully 
exercised the power of removal, and then went on to tell him 
that it was not part of his executive duty to enforce his order 
of removal but that the constitutional remedy was by judicial 
proceedings. At once, cases were brought against the recal- 
citrants by quo warranto.^ 

It seems probable that the advisory opinion occupies a 
similar position in the other States where it has been introduced. 
Dr. Holcombe of Harvard University^^ tells us the opinion of 
the justices in Massachusetts "is invariably accepted." That 
this has been true from the beginning is indicated by Opin. of 
the Justices, 126 Massachusetts, 547 (1781) and Opin. of the 
Justices, 115 Massachusetts, 602 (1874). Indeed, not long ago 
the court probably was responsible for the initiation of a piece 
of legislation. In In re Opin. of Justices, 209 Massachusetts, 
607, an opinion was given as to the constitutionality of a work- 
men's compensation act, and it was intimated (at page 612) 
that the decisions of a board created by the act would have to 
be enforced by judicial proceedings. The following year an 
amendment was passed^^^ providing for a decree by the superior 
court based on the decision of the board in each case.^ There 

*«2See pp. 115-116 supra. 

«3 People V. Martin, and People v. Orr, 19 Colo. 565. Cf. the quo 
warranto against the lieutenant-governor in In the matter of the Executive 
Communication, etc., 12 Fla. 653. 

*^ See pp. 38-39 supra. 

^ St. 1912, c. 571, s. 14. 

«6 Per Rugg, C. J., in McNichol's Case, 215 Mass. 497, at 502. 



THE ADVISORY OPINION IN PRACTICE 159 

is a single case in Maine where the legislature adopted the 
dissenting opinion of one justice,^^ and it appears that the 
governor did not follow the rules laid down in Questions Sub- 
mitted, etc., 70 Maine, 560, but it is quite hkely they had not 
yet reached him when he took action.^^ 

A word might be said about the effect of refusals. As a 
rule, when the justices have declined to express any opinion 
upon questions submitted, there has been no official remon- 
strance from the other departments. If the cause of the objection 
can be removed by a rephrasing of the question, sometimes 
this is done,^^ but more often the whole matter is dropped. 
There is one notable exception. In 1889 the Massachusetts 
house of representatives asked the justices to construe certain 
educational statutes ''with a view to further legislation on the 
subject matter" thereof. The justices declined to do so and 
explained that the reference did not disclose a "solemn occa- 
sion." The reply was referred to the judiciary committee, 
which made a report of considerable length, contending that 
it was for the house to determine the solemnity of the occasion 
and that in any case the question was within the precedents. 
Accordingly the house, by a vote of one hundred sixty-eight 
to eight, passed a resolution " that the house of representatives 
does not acquiesce in the conclusion of the justices as to the 
Hmitation of the authority of the house to require the opinions 
of the justices; and affirms the authority of the house under 
the constitution to require their opinions upon said questions. "^^° 
The merits of both sides will be considered at another place. ^^^ 

*«7 Opin. of the Justices, 6 Me. 486. 

**8 Statement and Questions Submitted, etc., 70 Me. 600. 

^^ In re Opin. of the Justices, 211 Mass. 630, and In re Opin. of the Jus- 
tices, 211 Mass. 632; In the matter of the Constitutionality of HB, No. 18, 
9 Colo. 623; In re HB. No. 165, 15 Colo. 593, 595; and In re a BUI Pro\dding 
that Eight Hours Shall Constitute a Day's Labor, 21 Colo. 29. 

"^ HJ. May 16, 1889. The refusal of the judges is recorded in Func- 
tions of Judiciary, 148 Mass. 623. 

*'^ See pp. 161-77 infra. 



160 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

Similarly the Colorado justices in 1913 refused to answer ques- 
tions regarding the Heutenant-governorship, for lack of a 
** solemn occasion. "^^^ A motion was made in the senate that 
that body declare the occasion is solemn within the constitution 
and again request an answer, but this did not come to a vote.*^^ 

*'' In re Interrogatories of the Senate, 54 Colo. 166. 
4"SJ. 1913, 308. 



CHAPTER III 
THE INTERPRETATION OF ADVISORY OPINION GLAUSES 

Having reviewed the history of the advisory opinion and 
the scope and manner of its appHcation in the United States, 
we are now in a position to consider more in detail the construc- 
tion that has been given to constitutional clauses providing 
for such opinions, and to attempt the formulation of certain 
general rules which have guided the justices in their advisory 
practice. The material for such an examination will be found, 
for the most part, in those cases where an opinion on the ques- 
tions referred has been refused, for, as a rule, the justices have 
analyzed the clause critically only when a doubt arose as to 
their obligation to comply with the request made. 

So it will be in order, preliminarily, to ascertain whether they 
may ever, of right, decline to give opinions requested. On 
principle, it would seem that answers should be given, unless 
the question is indisputably outside the scope of the constitution- 
al requirements,^ except possibly when the interrogatory calls 
for the determination of a case then pending in the courts. 
The purpose of the provision is to make the justices constitu- 
tional advisers to one or both of the other departments of the 
government, in cases of an especially difficult or serious nature. 
An adviser who can withhold advice at his discretion must be 
very unsatisfactory. But, it is objected, since the justices 
are bound to answer only if the question conforms to a certain 
description, it follows that they are entitled to refuse an opinion 
if, in their judgment, the question fails to meet the constitu- 
tional requirements. This argument proceeds on the assump- 

^ E.g. a question, in Florida, dealing with a statutory executive power. 



162 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

tion that this is a proper case for the exercise of judicial discre- 
tion, that the famous argument of Marshall, C. J., in Marbury 
V. Madison is applicable — just as the courts are bound to deter- 
mine for themselves whether an act of congress which has the 
appearance of law is really a law, having been made in pursuance 
of the constitution, so the justices, if not bound, are at least 
entitled, to determine for themselves whether a question sub- 
mitted for their opinion is within the words of the constitution 
governing such references. But, even if we unreservedly accept 
the reasoning in Marbury v. Madison, the two cases are really 
not at all comparable. In the one, the courts^ in the exercise 
of the judicial functions imposed upon them, must necessarily 
determine what they are going to apply as the command of 
the sovereign; they may set up their own standards or take the 
fiat of the legislature. In the other, the justices, acting extra- 
judicially as the constitutional advisers of other officials, are 
called upon to give opinions which, as they themselves usually 
admit and claim, can have no effect judicially, but which those 
other officials deem necessary and valuable advice to assist 
them in determining their course of action. If the question 
is properly a judicial one, i.e., a question the determination of 
which would involve the adjudication of a pending case, the 
doctrine of the separation of powers is, perhaps, a sufficient 
objection to the giving of an opinion. But if it is a question 
the answer to which is essentially of interest only to the interro- 
gator, in the exercise of executive and legislative, i.e., political, 
powers, why should the giving of that answer be in the discre- 
tion of the advisers? The courts will not pass upon questions 
of a political nature^ or attempt to control the other departments 
in the exercise of their political power. It is not quite clear that 
the reference of questions to the justices is the exercise of a 
political power, but it would seem more reasonable so to con- 
sider it in most cases, for it is commonly a step taken by the 

2Willoughby, Const., II, pp. 999 sqq. 



INTERPRETATION OE ADVISORY OPINION CLAUSES 163 

interrogator as incidental to the exercise of such power. In 
any case, is it not for the interrogator to decide whether the 
occasion and question are such as to warrant his asking counsel 
from his legal advisers? It is not unusual for the executive or 
legislative departments or officials thereof, to be given the last 
word in matters of constitutional construction.^ It is no reply- 
to point out that if this principle be admitted, there is no method 
of enforcing constitutional restrictions upon those departments. 
It should be acknowledged that the sanction for such restrictions 
is moral and political, not legal. Many examples of such leges 
imperfectae might be adduced. Legislatures are commonly 
made the final judges of the elections, returns and qualifications 
of their members; yet special requirements for such members 
are imposed by the constitution. Undoubtedly no court 
would venture to review the construction placed upon those 
requirements by a legislature. 

If we are to give careful attention to the wording of the con- 
stitutional provision requiring advisory opinions, possibly a 
distinction should be made between those States where certain 

^"It follows, therefore, that every department of the government 
and every ofl&cial of every department may at any time, when a duty is to 
be performed, be required to pass upon a question of constitutional con- 
struction. Sometimes the case will be such that the decision when made 
must from the nature of things, be conclusive and subject to no appeal or 
review, however erroneous it may be in the opinion of other departments 
or other officers; but in other cases the same question may be required to be 
passed upon again before the duty is completely performed. The first of 
these classes is where, by the constitution, a particular question is plainly 
addressed to the discretion or judgment of some one department or officer, 
so that the interference of any other department or officer, with a \dew to 
the substitution of its own discretion or judgment in the place of that to 
which the constitution has confided the decision, would be impertinent and 
intrusive. Under every constitution, cases of this description are to be 
met with; and, though it will sometimes be found difficult to classify them, 
there can be no doubt, when the case is properly determined to be one of 
this character, that the rvile must prevail which makes the decision final." 
Cooley, Constitutional Limitations, pp. 54-5. 



164 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

governmental organs or officials are empowered to require 
opinions in certain classes of cases/ and those States where the 
justices are charged with the duty of giving opinions in certain 
classes of cases ;^ for it may be argued that the grant of a power, 
not purely ministerial, implies a discretion as to the occasion 
for the exercise of that power, and the imposition of a hmited 
duty similarly carries with it the right to refuse performance 
of the duty, if, in the judgment of the person obliged, the Umits 
have not been observed. However, this does not get us very 
far, first because the power and duty are here interdependent 
and logically it would result that a discretion rests upon both 
the questioner and the questioned, which practically means 
that the latter can answer or refuse at will; and secondly, 
because this change in wording (beginning with Maine) is 
apparently accidental and neither the legislative department 
nor the executive department nor the courts have rested any 
weight upon it. 

Whether a question will be asked or not of course rests in 
the discretion of the inquirer. Whether or not a governmental 
official is bound to answer depends upon his obHgations under 
the constitution. Now if the constitution is ambiguous, as 
in this case, the purpose of its framers should determine the 
extent of the obligation. From an examination of the historical 
antecedents as well as the debates of constitutional conventions, 
we are justified in concluding that the purpose of the advisory 
opinion scheme was to secure to officials whose connection with 
the government is merely temporary, whose qualifications for 
deaUng with the difficult problems of political science are often 
meagre and whose ordinary sources of information are some- 
times prejudiced or inadequate, the expert advice of other 
officials upon questions with which they are especially compe- 
tent to deal thoroughly and without prejudice. It would seem 

* Massachusetts, New Hampshire, Florida, and South Dakota. 
5 Maine, Rhode Island, Missouri, and Colorado. 



INTERPRETATION OE ADVISORY OPINION CLAUSES 165 

to follow that the only admissible reasons for declining a re- 
quest for such advice are that the request did not come from an 
authorized source, or that the question is plainly, and not as a 
matter of judicial construction as opposed to executive or 
legislative construction, not within the intent of the words of 
the constitution,^ or that an answer would be inconsistent with 
the chief duties of the adviser.^ 

This conclusion is fortified by the history of extra-judicial 
advice in England. It has already been pointed out^ that in 
the eighteenth century the king as well as the House of Lords 
had an unquestionable right to the counsel of the judges, not 
only in the exercise of judicial functions, but in the exercise 
of executive and legislative functions, unless the giving of such 
counsel entailed passing upon a particular case then pending.^ 
The desuetude of this practice in the nineteenth century, at 
least as far as the executive is concerned, is probably due to 

^ See note 1, p. 161 supra. 

^ "Quando aliquid mandatur, mandatur est omne per quod parveni- 
tur ad illud. A special authority is granted. A prerogative would be 
null unless it carried with it the proper discretion to exercise it. The 
power to demand necessarily imphes the right to a reply. For whenever 
there is authority on the one hand, there must be a corresponding duty 
upon the other. There is a well defined distinction between a judge acting 
juridically, and a judge acting in the capacity of an adviser. The former 
adjudicates, settles and decides; the latter gives an opinion upon questions 
propounded; he throws upon them the light of his learning. . . . The true 
construction of the provision requiring the judges to answer, according to 
the weight of reason and authorities, would seem to be that the judges are 
always obliged to answer except when the same matter is actually pending 
before them juridically. To require them to answer when they are actually 
called on as judges, acting juridically, would interfere with the independ- 
ence of the judiciary." H. A. Dubuque, in Am. L. Rev., XXIV, p. 369, 
at pp. 396-7. 

* See pp. 6, 16, 22 and 27, supra. 

^ See especially the opinions of the majority of the judges and the 
opinions of the Lords in McNaghten's Case — 10 CI. and Fin. 200 — and 
the opinion of the Judicial Committee in Attorney-General for Ontario 
v. Attorney-General for Canada— (1912) A. C. 571. 



166 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

the creation of the Judicial Committee of the Privy Council, 
which is bound to advise the king on any question whatsoever, 
upon request.^'' The comprehensiveness of this statutory obli- 
gation is itself not negligible evidence of the extent of the obli- 
gation resting upon the king's councillors (including the judges) 
under the unwritten constitution. 

On the other hand, it must be admitted that in the United 
States there is considerable authority for the right of the justices 
to refuse their opinions at their discretion, on various grounds. 
The early New England practice is not essentially discrepant 
with the principles developed above. Thus in Massachusetts, 
when questions were put which were intimately connected with 
private interests, though the judges were reluctant to express 
an opinion, yet apparently they felt bound to do so under the 
constitution.^^ In one case,^^ they seriously considered " whether 
it might not be expedient first to submit to the consideration 
of the Honorable House, whether it would be expedient to 
request an ex parte opinion in such a case;" but concluded that 
since the opinion would not bind anyone and so could not affect 
the rights of the parties, "should they hereafter be brought 
before the court in a regular course of judicial proceeding," 
an answer might be given. Justice Story, in speaking to the 
constitutional convention of 1820, said that "as the constitution 
now stands, the judges are bound to give their opinions if insisted 
upon, even in a case where private rights are involved. "^^ 
Ex- Justice Morton took the same position in the convention 
of 1853.^^ So, too, in New Hampshire, the justices felt obHged 
to attempt an answer to a question to which great difficulty 

" 3-4 Wm. IV, c. 41, s. 4, and cf. Macqueen, House of Lords, p. 689 n., 
and In re Schlumberger — 9 Mo. P. C. 1. 

^^Opin. of the Justices, 7 Pick. 125, 130 n.; Opin. of the Justices, 5 
Mete. 596; and Opin. of the Justices, 9 Cush. 604. 

^2 Opin. of the Justices, 5 Mete. 596. 

13 Deb. Mass. Conv. 1820, p. 489. 

"Deb. Mass. Conv. 1853, II, p. 694. 



INTERPRETATION OF ADVISORY OPINION CLAUSES 167 

attached because of its very general nature.^^ Again, in Maine, 
as late as 1870, opinions were given in a particular case of an 
altogether private nature, which was all but pending before the 
court, since the individual concerned was free to appeal from 
the conviction and sentence of the lower court.^^ Only one 
justice (Kent, J.) enters a serious objection to answering, and 
though he points out clearly the necessary and reasonable 
limitation upon the advisory opinion power under the constitu- 
tion,^^ he is consoled for the "unfortunate precedent" by the 
fact that his opinion favors the prisoner and "cannot have any 
authoritative force in any possible future proceedings in the 
case. " 

It was only seven years later that the Massachusetts jus- 
tices were responsible for an opinion^^ which may, perhaps, 
be called the fountain-head of nearly a score of refusals on the 
part of justices in Massachusetts, New Hampshire and Maine, 
to act as advisers of the other departments.^^ Two questions 
were referred to them by the house of representatives: (1) 
Is a special justice of a municipal, district or poHce court ineli- 
gible to the house of representatives under Amendment VIII 
of the constitution? (2) If so, does acceptance of the legislative 
vacate the judicial ofl&ce? The justices pointed out that their 
opinions could only be required upon "important questions of 
law and upon solemn occasions," and declared in effect that an 
occasion could not be solemn unless the body making the inquiry 

^= Opin. of the Justices, etc., 25 N. H, 537. 

Instate V. Cleveland, 58 Me., 564. 

^'"When a compliance would violate distinctly and palpably some 
other constitutional pro\dsion, made for the protection of indi\-idual rights 
or involve a pre-judgment of a pending case, by opinions on the points 
in issue, a conscientious judge may well hesitate or even decline answering. " 

18 Opin. of the Justices, 122 Mass. 600. 

1^ The Missouri refusals, based on a large discretionar>- power in the 
justices, had preceded this, but there is no evidence that the Massachusetts 
justices had seen them and there is not a single reference to them in the 
Nevv- England opinions cited below. 



168 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

had occasion to consider the question "in the exercise of the 
legislative or executive powers, " as the case might be. In this 
particular case the question asked could not be affected by 
legislative action, and might come before the court in a regular 
judicial proceeding at any time; so an opinion should be refused. 
We are not concerned here with the vaHdity of these reasons 
for refusaP*^ so much as with the fact that the justices here 
assumed the right to pass finally upon the solemnity of the 
occasion. For this assumption there is practically no attempt 
at justification. The only argument is based on a hypothetical 
intention ascribed to the framers of the constitution, supposedly 
necessitated by the principle of separation of powers. ^^ It is 
true that the members of the constitutional convention of 1780 
were firm adherents to this principle, but it is equally true that 
the separation of powers, as that phrase is understood in the 
poUtical theory of the United States, is not affected in the 
slightest by the advisory opinion. 

As this argument has been reHed upon in a good many 
opinions, it will be worth while to examine its cogency at this 
point. That fundamental principle of our constitutional organi- 
zation known as the separation of powers requires that legisla- 
tive, executive and judicial functions shall, for the most part, 
be exercised by separate and independent organs of the state. 
"The difference between the departments undoubtedly is, that 
the legislature makes, the executive executes, and the judiciary 
construes, the law."^^ ('n [^ ^-^^ province of judicial power . . . 

2«See pp. 181-205, 208-214 infra. 

2^ "In view of the separation, established by the Constitution, between 
the legislative, executive and judicial departments of the government, 
we can hardly suppose it to have been the intention that either the legislature 
or the executive should demand of the judiciary its opinion, in advance, 
upon a question which may arise in the course of judicial administration, 
and which cannot be affected by legislative or executive action," Opin. 
of the Justices, 122 Mass. 600. 

22 per Marshall, C. J., in Wayman v. Southard, 10 Wheat. 46. 



INTERPRETATION OF ADVISORY OPINION CLAUSES 169 

to decide private disputes between or concerning persons."^ 
The purpose of this separation should be kept in mind, viz., 
that the judiciary, secure in tenure and compensation from 
possible encroachments by the other departments, might apply 
the law according to their best judgment, free from the pressure 
of political and expediential arguments. ^^ Now it is well known 
that in our system there is considerable over-lapping of powers. 
'' The correct statement is that a department may constitution- 
ally exercise any power, whatever its essential nature, which 
has, by the Constitution, been delegated to it, but that it may 
not exercise powers not so constitutionally granted, which, 
from their essential nature, do not fall within its division of 
governmental functions, unless such powers are properly inci- 
dental to the performance by it of its own appropriate func- 
tions. "^^ 

There are several answers, then, which might be made to 
the argument of the Massachusetts justices. First of aU, the 
giving of advisory opinions is not a judicial function; such 
opinions are extra-judicial in character, and, as they bind no 
one, it is difficult to see how they can interfere with the exercise 
of judicial power as defined above, unless given in a pending 
case. Secondly, even if advisory opinions be considered as an 
interference with the legislative or executive departments, 
i.e., as an exercise of legislative or executive power, there is no 
serious violation of the principle of separation of powers, which 
was put forward to protect the judiciary, not the executive or 
legislature. But, as a matter of fact, such interference is insigni- 
ficant, since the justices proffer their advice only when it is 

23 Merrill v. Sherburne, 1 N. H. 199, at 203. Cf. ''To hear and decide 
adversary suits at law and in equity, with the power of rendering judgments 
and entering up decrees according to the decision, to be executed by the 
process and power of the tribunal deciding, or of another tribunal acting 
under its orders and according to its direction, is the exercise of judicial 
power, in the constitutional sense." Taylor v. Place, 4 R. I. 324. 

2" The FederaHst, No. LXXVIII. 

25Willoughby, Constitution, II, p. 1263. 



170 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

requested, and. the other two departments may give as much 
or as httle attention to it, even then, as they please. Lastly, 
even if the rendering of advisory opinions could be considered 
as a judicial function, it is obvious that its effect on the inde- 
pendence of judicial tenure must be remote. It seems reasonable 
to conclude that there is no real irreconcilability between the 
separation of powers and the advisory opinion. 

Notwithstanding the weakness of the reasoning in Opinion 
of the Justices, 122 Massachusetts, 600, a bad precedent had 
been established, and one which unfortunately found no little 
favor. The argument was plausible superficially, and furnished 
a means of escape from a duty often burdensome and sometimes 
disagreeable. The principle was again enunciated, obiter, by 
the same justices in 1878,^^ and was adopted and applied by an 
almost entirely different group in 1889.^^ This time the house 
of representatives placed upon its journal a formal protest,^^ 
denying the right of the justices to place such limitations upon 
questions referred for advisory opinions. The case attracted 
considerable attention at the time and the action of the house 
was generally endorsed.^^ But the justices had crossed the 
Rubicon, and at the first opportunity, they stated their position 
quite explicitly. "In determining whether questions are in- 
cluded in it (the clause), the rights and duties of the house 
and of the justices are co-ordinate and reciprocal. The house 
is undoubtedly authorized to require an opinion on all such 
questions as it deems to be embraced in the constitutional 
provision, but it must be for the justices to determine whether 
the requirement thus made is in conformity therewith, and one 
which they are bound to obey. . . We must for ourselves finally 
decide whether the occasion contemplated by the constitution 

2« Opin. of the Justices, 126 Mass. 557. 

2^ Functioni of Judiciary, 148 Mass. 623. 

2^ See p. 159 supra and cf. the attitude of the House of Lords in a case 
cited by Macqueen — see page 27 supra. 

29 Cf. Albany L. Jour. XL, p. 158; Cent. L. Jour. XXVIII, p. 493; 
Am. L Rev. XXIV, p. 369, at pp. 385 sqq.; Harv. L. Rev. Ill, pp 228-9. 



INTERPRETATION OE ADVISORY OPINION CLAUSES 171 

in which our opinion may properly be required has arisen. "^"^ 
This precedent has been followed in cases of more recent date^^ 
and seems firmly rooted in the Massachusetts practice. 

The justices of other States were not slow to take it over 
and attempt to facilitate its development. As early as 1881 
we find two Maine justices indicating their approval of Opinion 
of the Justices, 122 Massachusetts, 600, and testing the solem- 
nity of an occasion by an arbitrary standard of their own.^^ 
They soon won over the rest to their way of thinking,^^ and 
in 1901 the majority declared in unequivocal terms their right 
to decline an answer if they deem the solemnity of the occasion 
insufficient.^ Three justices (Emery, Whitehouse and Peabody, 
JJ.) submitted a forceful dissenting opinion in which they 
held that the advisory opinion clause was mandatory and left 
nothing to the discretion of the judges. (They also questioned 
the criteria applied, even if the right to refuse an opinion be 
admitted). Six years later (one of the dissenters having be- 
come chief justice meanwhile) they carried the court with them 
in giving an opinion^^ on a question referred under the very 
circumstances which were responsible for the refusal of Opin.s 
of the Justices, 95 Maine, 564. Of the other two judges who 
had participated in this latter refusal, S trout, J., had apparently 

^° In re Power of Legislature to Reqmre Opinion, 150 Mass. 598. 

21 In re Opin. of the Justices, 190 Mass., 611; and In re Opin. of the 
Justices, 217 Mass., 607. 

32 Question Submitted, etc., 72 Maine, 542. 

2^ Question Submitted, etc., 85 Me. 545. 

^■^ "It is . . . essential, in order that the justices be required to give their 
opinion, that the questions be submitted upon a solemn occasion; and, 
however important may be the questions of law submitted, if it clearly 
appears to the justices that such an occasion does not exist, it is their duty 
to dechne to give their opinion in answer to such questions. . . The justices 
must determine, each undoubtedly for himself, whether or not that con- 
dition existed, although in cases of doubt, it m.ay be the duty of the justices 
to resolve that doubt in favor of the prerogative of the body propounding 
the question." Opin.s of the Justices, 95 Me. 564. 

35 In re Opin. of the Justice^, 103 Me. 506. 



172 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

changed his mind, and Savage, J., registered the soUtary pro- 
test. Savage has since become chief justice, but no questions 
have been submitted by the legislature of late, and it is difficult 
to say whether the justices as a whole would follow the most 
recent precedent^^ or not. 

In New Hampshire, too, there is evidence, that, at least 
from 1879, the judges entertained the opinion that they had 
considerable discretion in refusing advice to the other depart- 
ments. The unsatisfactory refusal of Opinion of the Court, 
58 New Hampshire, 623, has already been criticised." The 
importance of the question asked is weighed in Opinion of the 
Court, 60 New Hampshire, 585, though the doubt is resolved 
in favor of the legislature. But in Opinion of the Justices, 67 
New Hampshire, 601, (1892), there is a clear appUcation of 
one of the tests announced in Opinion of the Justices, 122 
Massachusetts, 600,^^ resulting in a refusal. This test is quoted 
with approval in several later cases^^ and has evoked no dissent. 
However, there has been, in New Hampshire, no claim of 
a right to refuse opinions as comprehensive as in In re Power 
of Legislature to Require Opinion, 150 Massachusetts, 598, or 
Opinions of the Justices, 95 Maine, 564. 

The Rhode Island justices have never given any indication 
of a disposition to withhold desired advice, except in connection 
with a pending case,^*^ but it must be remembered that the con- 
stitution in that State says "any question of law," and so leaves 

3^ In re Opin- of the Justices, 103 Me. 506. 

" See p. 113 supra. 

3* "The constitution introduces an exception to the rule in some cases, 
in which the official power or official duty of the senate, the house of repre- 
sentatives or the governor and council is doubtful, and in which the opinions 
of the justices are desired by one of those bodies upon an important question 
of law necessary to be determined by the body requiring the opinions." 
Opin. of the Justices, 67 N. H. 601. 

3^ In re Opin. of the Justices, 73 N. H. 621; In re Opin. of the Justices, 
75 N. H. 613; and In re Opin. of the Justices, 76 N. H. 597. 

^«Opin. of the Supreme Court, 3 R. I. 299. 



INTERPRETATION OF ADVISORY OPINION CLAUSES 173 

very little opportunity for a difference of opinion as between 
questioners and questioned. 

It is possible that the ultimate cause of the judicial recal- 
citrancy in New England is to be found in the Missouri practice, 
which was in its final form before Opinion of the Justices, 122 
Massachusetts, 600.'^^ In Advisory Constitutional Opinion of 
the Judges, etc., 37 Missouri, 135, the judges laid down general 
rules for interrogatories under the new advisory opinion clause 
and declared, inter alia, that "the judges must determine what 
are 'questions of Constitutional law,' and what are 'solemn 
occasions' within the meaning of this section," and that "it 
must have been understood by the framers of (the constitution), 
and would seem to be the clear intent of the section as it reads, 
that such questions should be important in reference to the 
public interest, and the necessary and immediate action of the 
Legislative or Executive branch of the Government, upon 
some matter of unusual magnitude and solemn concern for the 
public good, and on a pure question of law which could only be 
finally determined by the Supreme Court as a judicial question. " 
The first of these principles is an unsupported usurpation of 
discretion, the second rests only upon the unsubstantial fabric 
of a guess. Yet they are without doubt authoritative as to 
the Missouri practice, and were in fact the death-blow of the 
advisory opinion in that State. They were expressly reaffirmed 
in In the matter of the Northern Missouri Raihoad, 51 Missouri, 
586, and Opinion of the Court, etc., 55 Missouri, 497. 

The original wording of the advisory opinion clause in 
Florida left no doubt as to its mandatory character, and the 
only construction possible was frankly set forth in the second case 
under the provision. "It is evident from the language used 
that there is a discretion vested in the Governor as to requiring 
opinions, and it is equally plain that there is no discretion in 
the court, if the opinion required involves, upon a given state 
of facts, an interpretation of any portion of the Constitution 

"But cf. note 19 on p. 167 supra. 



174 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

or the expression of an opinion upon any point of law. "^^ jn 
the next case, too, they yielded with great reluctance to the 
imperative requirement of the constitution.'*^ In fact, until 
the amendment of 1875, there is no suggestion of a right to 
refuse answers, unless the questions come from an unauthorized 
source.^ But after the clause was changed, the judges were 
only too glad to avail themselves of the undoubted right to 
decline advice when the inquiries did not bear upon executive 
powers and duties, under the constitution; and beginning with 
In re Executive Communication, etc., 23 Florida 297, there are 
nine refusals out of a total of twenty-four references. These 
refusals, it should be pointed out, are not at all comparable to 
those we have been discussing, in Massachusetts, Maine and 
Missouri. What is an executive power or duty, and whether 
that power or duty is constitutional or statutory are, as a rule, 
questions of fact, more or less susceptible of absolute deter- 
mination; the importance of a question and the solemnity of 
an occasion are relative matters, to be estimated in particular 
cases according to the attendant circumstances, and largely 
depending upon individual judgment. 

In Colorado, the first refusal was due to the fact that the 
matters referred were then before the courts in litigated cases, 
as well as to the physical impossibility of answering questions 
of such generality as those submitted in the time available.*^ 

*- per Westcott, J., in In the matter of the Executive Communication, 
etc., 12 Florida, 653. 

*3 "Protesting that the questions involved in the inquiry are not matters 
of judicial cognizance, and that the 'opinion' of this court is binding upon 
no person, the matter being purely of legislative interpretation and adjudica- 
cation, yet because the Constitution requires the court to give opinions 
'upon any point of law,' when required by the Governor, we are constrained 
to comply with the requirement of the Constitution." In the matter of the 
Executive Communication, etc., 12 Fla. 686. 

^^In the matter of the Executive Communication, etc., 12 Fla. 653; 
and In the matter of the Executive Communication, etc., 14 Fla. 289. 

^ In the matter of Senate Resolution on the Subject of Irrigation, 9 
Colo. 620. 



INTERPRETATION OF ADVISORY OPINION CLAUSES 175 

It is also suggested that replies might be refused when the subject 
matter of the inquiries is not covered by any pending bill; 
and this is cited with approval in a case of 1889,^^ where the 
court assumes ''that were such not the fact, the resolution 
would not be presented." This smacks of the Missouri doc- 
trine, and in the District Attorneys case reported in 12 Colorado, 
466,^^ the theory of judicial discretion in its most positive 
form is unhesitatingly proclaimed, on the authority of Opinion 
of the Court in Response to Governor, 49 Missouri, 216. Fur- 
thermore, the court is not content with this, but proceeds, in 
the exercise of that discretion, to work out a very elaborate 
exegesis of the advisory opinion clause, valuable and instructive 
in many respects, but going considerably beyond the needs of 
the principal case. This opinion has been unquaUfiedly ap- 
proved in many more recent cases^^ and must be accepted as 
indicating the prevaihng practice in Colorado. It is probably 
responsible for the growth of a larger number of elimination 
tests than can be found in any other State, as will be seen in 
examining the special rules listed below. Only once has a 
judicial voice been raised against the doctrine, in Colorado; 
in 1913, Scott, J., argued with great assurance, that to permit 
the court to pass finally upon the importance of a question or 
the solemnity of an occasion defeated the intention of the 
constitution.^^ 

The restricted form of the advisory opinion in South Dakota 
has given less opportunity for the development of the doctrine 
we are discussing. Yet "important question" and "solemn 
occasion" figure therein; and the doctrine at last appears ^ 

^^ In re Senate Resolution Relating to Internal Improvement Fund , 
etc., 12 Colo. 285. 

47 In the matter of the Constitutionality of SB. No. 65, 12 Colo. 466. 

4* In re Appropriations by General Assembly, 13 Colo. 316; In re 
Speakership of the House of Representatives, 15 Colo. 520; In re HR. No. 
25, 15 Colo. 602; In re University Fund, 18 Colo. 398; In re Pemtentiar>' 
Commissioners, 19 Colo. 409; et al. 

*^ In re Interrogatories of the Senate, 54 Colo. 166. 



176 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

ushered in on the authority of In the matter of the Constitu- 
tionality of SB. No. 65, 12 Colorado, 466.^*^ Later cases lend 
their support^^ — and there has been only one reference since 1900. 

We must admit, then, that this unhistorical and irrational 
principle has estabUshed itself firmly in most of the States 
where the advisory opinion exists. It will be clear from the 
foregoing paragraphs that there have been two foci of infection, 
so to speak, the opinion in 122 Massachusetts, 600, for Massa- 
chusetts, Maine and New Hampshire, that of 37 Missouri, 135, 
for Colorado and South Dakota. For reasons set forth above, 
it is submitted that the arguments in both cases are fallacious 
and lack the merit that should characterize precedents which 
take rank as leading cases. There is evidence that this has been 
recognized both in Maine and in Colorado (if only by a sohtary 
justice), and it is to be hoped that judges will remember that 
the rule of stare decisis is less conclusive in constitutional mat- 
ters, when it is manifest that a previous construction is incor- 
rect,^^ and will yet return to a better usage. Otherwise the 
process of constitutional amendment alone can maintain the 
usefulness of the advisory opinion. 

In the absence of constitutional requirement, there is no 
reason to suppose that judges cannot refuse to advise the other 
departments of our State governments, if they so desire. There 
are many examples where such advice has been given, it is true, 
but never with any acknowledgment of obHgation; and there 
are also numerous instances of flat refusals, sometimes accom- 
panied by a wholesale denial of an obHgation to reply under any 
circumstances. It is obvious, too, that in a system where 
the composition and powers of the judiciary are not within the 
control of the legislature, a statutory provision for advisory 

50 In re Ch. 6, Sess. L. 1890, 8 S. D. 274. 

51 In re House Resolution No. 30, 10 S. D. 249; and In re Opin. oi the 
Judges, 34 S. D. 650. 

52 Willoughby, Const., I, pp. 51-2, and Baldwin, Amer. Judiciary, pp. 
57, 60, and cases cited there. 



INTERPRETATION OF ADVISORY OPINION CLAUSES 177 

opinions can have no more weight than a request supported 
only by legislative resolution. The more recent cases indicate 
that while the judges are probably^^ free to comply with such 
requests, even in the absence of constitutional requirement, 
still there is a strong tendency to decline.^ Even in Canada, 
where the supreme court is the creature of the legislature, there 
has been a pronounced incHnation to refuse opinions occasional- 
ly,^ on the ground that the questions referred were not within 
the statute; but here, the refusals have caused little incon- 
venience, for the legislature has promptly amended and expanded 
the statute to meet difficulties that have arisen. In only one 
case has it been seriously argued that the imposition of advisory 
duties was ultra vires of the legislature,^^ and the decision of the 
Privy Council in favor of the statute^^ has probably settled the 
matter. 

We are now prepared to attempt a codification, as it were, 
of the law relating to advisory opinions as it is found in the prac- 
tice of those States where such opinions are required under 
the constitution. It will be our endeavor to formulate the 

53 See p. 78 supra. 

^* In re Board of Sinking Fund Commissioners, 32 S. W. 414 (Ky.); 
In re Board of Purchase and Supplies, etc., 37 Nebr. 425; Cataract Power 
Co. V. Buffalo. 115 N. Y. Supp. 1045; and State v. Baughman, 38 Ohio 
St. 455. Cf. the words of Thayer (Legal Essays, p. 182, at 185), written 
in 1895 : "To say that a court is not obliged to answer, and cannot be obliged 
to answer by the action of the other departments, is not to say that they 
cannot answer if they see fit. . . . It seems clear that the judges may 
answer if they choose to. The precedents . . . indicate only that they need 
not if they do not choose; and, perhaps also, that it is generally inex- 
pedient to answer when not required by the constitution." 

55 In re Certain Statutes of . . . Manitoba, etc., 22 Can. S. C. R. 577; 
In the matter of the Jurisdiction of a Province, etc., 35 Can. S. C. R. 
581 ; and In re Criminal Code, 43 Can. S. C. R. 434. 

^* In re References by the Governor General in Council, 43 Can. S. C. 
R. 536. 

'^Attorney-General for Ontario v. Attorney-General for Canada, 
(1912) A. C. 571. 



178 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

rules established by that practice generally, as far as possible, 
indicating in each case the historical development; but special 
explanations will be necessary in many instances to define the 
extent of a rule's application in particular States, and illustra- 
tions from the English practice or extra-constitutional opinions 
will sometimes throw a clearer Hght on the point under dis- 
cussion. 

1. The justices are under no obligation to give extra-judicial 
opinions to an individual or governmental organ not authorized 
to require them hy the constitution. 

There are two general classes of cases where this rule is 
apphed. The first is where the constitution contains an advisory 
opinion clause, but the request in question does not come from a 
source named in that clause. These cases are all interrogatories 
from the executive department. In the beginning, the justices 
have sometimes waived the lack of authority, falling back upon 
the exact words of the constitution only in recent years, as their 
attitude has become more critical. Thus in Massachusetts, 
though the constitution authorized questions only from ''each 
branch of the legislature, as well as the governor and council," 
the justices unquestioningly gave advice on several occasions 
to the governor alone,^^ and once, semble, to the council.^^ But 
in 1912 they suggested that there were grave doubts as to 
whether either the governor or council could require advisory 
opinions,^^ and the following year the point was carefully con- 
sidered and the governor was told that no answer could be 
given unless the council joined with him in making the refer- 
ence.^^ Without doubt the same principle would now be applied 

'«Opin. of the Justices, 3 Mass. 568; Opin. of the Justices, 22 Pick. 
571; Opin. of the Justices, 11 Cush. 604; In re Opin. of the Justices, 210 
Mass. 609. 

"Opin. of the Justices, 13 Allen, 593. 

^°In re Opin. of the Justices, 211 Mass. 620; and In re Opin. of the 
Justices, 211 Mass. 630. 

" In re Opin. of the Justices, 214 Mass. 602. 



INTERPRETATION OF ADVISORY OPINION CLAUSES 179 

to the council. It may be observed, parenthetically, that if 
this rule be taken in connection with the rule of Opinion of the 
Justices, 126 Massachusetts, 557, that the question referred 
must be "necessary to be determined by the body making the 
inquiry," the governor is as effectually deprived of assistance 
in his exercise of the veto power, as if the court held this was 
not an executive function at all, as in Florida.^^ Even in 1810, 
a question from the attorney-general, at the suggestion of the 
house of representatives, was returned without an opinion.^^ 
The form of the New Hampshire clause is the same as that of 
Massachusetts, but the point we are discussing has not been 
raised recently in the former State. Two opinions were given 
to the governor alone in 1866 and 1873.^ In 1877, however, 
the justices refused to consider a request from the city solicitor 
of Manchester,^^ and in two later cases they have dechned to 
express approval or disapproval of rules and forms prepared 
by commissioners and submitted to the court under a statute.^^ 
If the justices are careful to answer only requests from an 
authorized source, they may be compelled, in extreme cases, 
to assume the difficult task of deciding who is governor^^ or 
acting governor,^^ or even which of two legislatures has a de 
jure existence. ^^ 

The second class of cases is where the constitution does 
not authorize advisory opinions at all. It has akeady been 
pointed out that in many such cases answers have been given. 

*- In re Executive Communication, etc, 23 Fla. 297. 

^3 Commonwealth v. Smith, 9 Mass. 530. 

^ Opin. of the Justices, 53 N. H. 634; and Opin. of the Justices, 53 
N. H. 640. 

"5 Opin. of the Justic-p 62 N. H. 706. 

®s In re School Law ^lal, 63 N. H. 574; and In re Probate Blanks, 

71 N. H. 621. The prima^^ reason for these refusals was that the court 
was not asked to advise merely, but actually to validate the rules and forms 
submitted for its approval. 

*^ In the matter of the Executive Commimication, etc., 12 Fla. 653. 

'^ In the matter of the Executive Communication, etc., 14 Fla. 289. 

«8 Statement and Questions Submitted, etc., 70 Me. 570; and State- 
ment and Questions Submitted, etc., 70 Me. 600. 



180 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

The favored questioners include the governor/^ the governor 
acting through the attorney-general/^ the governor acting at 
the request of the legislature/^ and various State Boards of 
which the governor may or may not be a member/^ as well 
as one or both houses of the legislature/^ or committees thereof.^^ 
On the other hand there are so many instances where opinions 
have been refused that there can be little doubt that there is no 
obhgation to give advice either to the legislature^^ or to any 
executive official/^ in the absence of constitutional requirement. 

2. Advisory opinions will not be rendered when the question sub- 
mitted deals with private rights involved in a case actually 
before the courts. 

Apart from the justification on principle/^ there is abundant 
authority in precedent for this proposition. It is true that 
under royal pressure the EngHsh judges on several occasions 

70Opm. of the Judges of the Supreme Court, 30 Conn. 591; Opin. of 
the Judges of the Court of Appeals, 79 Ky. 621; People v. Green, 1 Denio, 
614; In the matter of Hughes, 61 N. C. 57; cases under the Oklahoma 
statute (see pp. 76-78 supra) ; and Respublica v. De Longchamps, 1 Dall. 
111. 

71 In re an Act, etc., 83 N. J. L. 303. 

" Opin. of the Judges, etc., 37 Vt. 665. 

" In re School Fund, 15 Nebr. 684; In re Board of Public Lands and 
Buildings, 18 Nebr. 340; and In re Babcock, 21 Nebr. 500. 

7* Opin. of the Judges, etc., 32 Conn. 565; In re Railroad Commissioners 
15 Nebr. 679; In re State Warrants, 25 Nebr. 659; In re Senate File 31, 
25 Nebr. 864; In re Quaere, etc., 31 Nebr. 262; In re House Roll 284, 31 
Nebr. 505; Deb. Mass. Conv. 1853, I, p. 138 (N. Y. case); Opin. ot the 
Justices, 31 N. C. App.; and Report of the Judges, etc., 3 Binney, 595. 

'* In re Appropriations, etc., 25 Nebr. 662. 

7^ Reply of the Judges, etc., 33 Conn. 586; In the matter of the Appli- 
cation of the Senate, 10 Minn. 78; Opin.s of the Justices, etc., 64 N. C. 785; 
and State v. Baughman, 38 Ohio St. 455. 

'7 In re Board of Sinking Fund Commissioners, 32 S. W. 414 (Ky.); 
Rice V. Austin, 19 Minn. 103; State v. Dike, 20 Minn. 363; and the opinion 
of Norval, J., in In re Board of Purchase and Supplies, etc., 37 Nebr. 425, 
which apparently resulted in a cessation of extra-judicial consultation in 
Nebraska — see p. 76 supra. 

7* See p. 162 supra. 



INTERPRETATION OF ADVISORY OPINION CLAUSES 181 

gave extra-judicial opinions in pending cases, but the later 
and better practice condemned such a course. '^^ In the United 
States the authorities are in support of the rule as stated almost 
without exception. ^° Perhaps in reason the rule should be 
extended to cover cases where a decision has been reached in 
some lower court and it is still possible that an appeal may be 
taken, at least where the case is of a criminal nature ;^^ but 
opinions were given under just such circumstances in Opinion 
of the Justices (9 Allen 585)^2 ^nd State v. Cleveland.^s 

3. The possibility that the question submitted may at some time 
come before the courts in a litigated case is not a sufficient 
excuse for refusing to give an advisory opinion thereon. 
The writer beHeves this is the better rule on principle and 
on authority, although it cannot be denied that there is much 
in the recent practice that is inconsistent with it. In fact, 
it is easily demonstrable, that the general adoption of the 
contrary rule would be so severe an emasculation of the advisory 
opinion as to make it of insignificant governmental utihty. Of 
the four hundred and ten advisory opinions which have been 
given in the States where such opinions are authorized by the 
constitution, two hundred and seven involved dealing with 
obvious questions of private rights, including both personal 
rights and property rights. There are also many other ques- 
tions which could have been brought before a court in various 
ways. If possible litigation were a conclusive test, advisory 
opinions could be obtained from supreme court judges only 

^^ See p. 16 supra. 

*° Commonwealth v. Smith, 9 Mass. 530; Opinion of Kent, J., in State 
V, Cleveland, 58 Me, 564; In the matter of Senate Resolution, etc., 9 Colo. 
620; In re Continuing Appropriations, 18 Colo. 192; In re Priority of Legis- 
lative Appropriations, 19 Colo. 58; and In re Assessment of Pro]3erty, etc., 
25 Colo. 296. 

81 In re Opin. of the Judges, 8 Okla. Cr. 467. 

82 See Green v. Commonwealth, 12 Allen 155. 

83 58 Me. 564. The opinion of Kent. J., is worthy of attention. 



182 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

as to matters of law the final determination of which, under 
the constitution, rests in the discretion of the executive or legis- 
lative departments. But this would confine the scope of such 
opinions almost entirely to exclusively poHtical matters, a 
field into which, it is said, the judiciary should be forced as 
little as possible.^ If the advisory opinion is to struggle for 
existence between these Symplegades, it might as well give 
up the ghost. 

The judges of our courts have not always approached the 
problem we are discussing from the same point of view. Some- 
times they have been content to announce simply that ex parte 
opinions upon questions of private right should not be given, 
sometimes they have said that questions of private right should 
only be adjudicated in regular proceedings in court. Several 
courts have laid down the rule that they will not construe 
existing statutes in advisory opinions, because private rights 
may aheady have arisen thereunder. It is possible, too, to 
state the proposition in positive terms of inclusion rather than 
negative terms of elimination, and say that only questions 
publici juris will be made the object of extra-judicial advice. 
It will be convenient to examine these various statements in 
turn, as a series of rules, as the different phraseology has sug- 
gested different arguments both pro and contra and has been 
responsible for different developments and apphcations. 

(a) Ex parte advisory opinions upon questions of private 
right should not he given. (?) Although there are quite a number 
of cases in which this principle has been asserted obiter, very 
few can be discovered where it was the basis for a refusal. 
The phrase has been persistently misused in both instances. 
Strictly speaking, an advisory opinion to the executive or legis- 
lative departments could only be ex parte, if it dealt with con- 
tentious matter in which the State was interested as a possible 

^ Cf. the remarks of Story, J., in 1820, and of ex- Justice Morton in 
1853, in Mass., referred to on pp. 35-37 supra. 



INTERPRETATION OE ADVISORY OPINION CLAUSES 183 

litigant. ^^ Cases of that description are rare, and the practice 
conflicting. In 1825 the Massachusetts justices reluctantly 
advised the house of representatives that the State was under 
no obHgation to pay certain land rents to the trustees of a par- 
ticular estate.^^ So, too, in 1844, they rendered an opinion as 
to the sinking fund contribution imposed upon the Western 
Railroad corporation by statute. ^^ On the other hand as 
early as 1816, the New Hampshire justices refused to express 
any opinion upon the power of the legislature to amend private 
corporation charters; they advanced two reasons — (1) that 
the constitution "did not contemplate that the opinion of the 
justices of the superior court should be required upon a mere 
question of right between the legislature and individuals, but 
upon important questions of a nature altogether pubhc;" 
(2) the importance "that to the decision of every question of 
a new impression, involving private rights, we should not only 
in fact come, but . . . that those who are interested should 
have a reasonable confidence that we come, with minds entirely 
unshackled by preconceived opinions. "^^ If the first reason 
is a valid excuse, it would seem to be appHcable to the two 
Massachusetts cases just referred to, but it is evident that 
either the New Hampshire opinion had not come to the atten- 
tion of the Massachusetts justices, or that it did not commend 
itself to them. In so far as the second reason may be taken as 
referring to cases where the State is not a possible party, it is 
surely ohiter. Yet this very extension of the argument to all 
cases involving private rights has found much favor in recent 
years and is responsible for a deplorable confusion of the real 

55 "Of legal proceedings ex parte ordinarily implies a hearing or examina- 
tion in the presence of, or on papers filed by, one party and in the absence of, 
and often without notice to, the other." — Webster. 

"The term ex parte implies an examination in the presence of one of the 
parties and the absence of the other. " — Bouvier. 

*^ Opin. of the Justices, 7 Pick. 130 n. 

*^ Opin. of the Justices, 5 Mete. 596. 

88 Opin. of the Court, 62 N. H. 704. 



184 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

issue. The Massachusetts practice is fairly sound on this 
point. In Functions of Judiciary, 148 Massachusetts, 623, 
the justices thought that when a question involved private 
rights there was the more reason to be sure it was within the 
advisory opinion requirement, but their ultimate refusal was 
based on an alleged lack of a solemn occasion. Again in 1906^^ 
they declared that opinions which might affect the rights of 
parties not present "ought not to be given, except when needed 
in the consideration of an important matter of state that calls 
for official action. "^° But there is not a single example of a 
refusal resting clearly and solely upon this "private rights" 
argument and nowhere is there the confusion which exists in 
some of the other States, between opinions which may touch 
upon the rights of unrepresented parties, and ex parte opinions. 
Missouri, with a case of 1874, and Colorado, with a long Hne 
of cases beginning in 1887, are primarily to -blame for inferior 
practice. In the Missouri case^^ the house of representatives 
asked the justices whether a bill extending the time on a debt 
due the State from a railroad would imperil the State's first 
lien. The justices, apparently, did not object to giving an opin- 
ion because the State's interests were involved, though such 
an opinion would be truly ex parte, but withheld their advice 
because the question concerned others besides the State, and 
opinions "upon points which may subsequently come before 
them in contested cases . . . would be ex parte,^^ etc. It is 
conceivable that they had in mind only actions where the 
State might be a party, though other Missouri cases^^ do not 
encourage so lenient a construction; but there can be no doubt 
that in the Colorado cases, the justices were referring only to 
actions between private persons. The source of the confusion 

^^ In re Opin. of the Justices, 190 Mass. 611. 

^° Cf. Attorney-General of Canada v. Attorneys-General for Ortario, 
Quebec and Nova Scotia, (1898) A. C. 700, for Judicial Committee practice. 

81 Opin. of the Court, etc., 55 Mo. 497. 

82 Advisory Constitutional Opin., etc., 37 Mo. 135; In the matter of the 
N. Mo. R. R., 51 Mo. 586; and In the matter of Inquiries, etc., 58 Mo. 369. 



INTERPRETATION OF ADVISORY OPINION CLAUSES 185 

is an ohiter dictum in In the matter of Senate Resolution, etc., 
9 Colorado, 620. A list of very general questions on the subject 
of irrigations^ was returned unanswered, for the very good reason 
that " there are now in this and other courts in the State actions 
through which some of these matters are in process of adjudica- 
tion. " It was also quite properly suggested " that a satisfactory 
response to the resolution would require vast research and extra- 
ordinary caution . . . and the period of time provided for a 
legislative session would hardly be sufficient to return safe and 
satisfactory answers to more than one such inquiry." But 
unfortunately the inevitable judicial fondness for enunciating 
broad principles led them to add that "it could not have been 
the intention to authorize an ex parte adjudication of individual 
or corporate rights by means of a legislative or executive ques- 
tion; parties must still adjudicate their rights in the ordinary 
and regular course of judicial proceeding." Possibly even this 
excuse would have been admissible in this case, if necessary, 
for the justices objected only to giving such "ex parte^' opinions 
"except upon the gravest and most urgent necessity;" and as 
they pointed out, there was no intimation that the matters 
involved were covered by any bills before the legislature, while 
some of the questions certainly appear to be concerned with 
private rights exclusively. But these quahfications did not 
attend the doctrine when it made its next appearance (also 
obiter) in In the matter of the Constitutionahty of SB. No. 65, 
12 Colorado, 466. The justices here accepted it, shorn of all 
quahfications, on the authority of the earlier cases, and tried 
to reinforce it by a "due process argument. "^^ Henceforth 

93 For the questions, see SJ. 1887, p. 650. 

9* "It is a principle declared by our constitution (Sec. 25, Art. 2), and 
of universal recognition, that no person shall be deprived of life, liberty 
or property without due process of law. But there cannot be due process 
of law unless the party to be affected has his day in court. Yet a careless 
construction and application of this constitutional provision might lead to 
the ex parte adjudication of private rights by means of a legislative or exe- 
cutive question, without giving the party interested a day ... in court." 



186 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

the rule was unquestioned. It has been quoted obiter many 
times. ^^ and has served as authority for several refusals to 
answer, both when an opinion would really have been ex parte, ^^ 
and when questions of private right alone were involved. ^^ Three 
times it has served as a basis for refusals to review matters 
already passed upon in a litigated case, or to "overrule" regular 
cases in opinions. ^^ It is responsible, also, for two refusals in 
South Dakota,^^ where it made its first appearance, obiter, in 
the exact phraseology of 12 Colorado, 466;^*^° and for a dictum 
in the dissenting opinion of Norval, J., in Nebraska.^^^ 

Evidently there are two kinds of cases to be considered 
here — the one where there is some possibility of action being 
brought to which the interrogator, or perhaps the State, would 
be a party, the other where the private rights of persons not 
before the court, and of no others, are made the subject of 
requests for advice. In the first, the opinion, if given, would 
really be ex parte, in the second that phrase is loosely used to 
mean that parties whose rights might be involved are unrepre- 
sented before the court. The first answer to be made to the 
arguments noted above applies alike to both; it is that since 
the opinions requested are advisory only and are not binding 
upon the court or justices if the same matters later come before 

5^ In re Appropriations, etc., 13 Colo. 316; In re Priority of Legislative 
Appropriations, 19 Colo. 58, et al. It is not clear whether it is obiter in In 
re State Board of Equalization, 24 Colo. 446, In re HB. No. 99, 26 Colo. 
140, In re SB. No. 27, 28 Colo. 359, and In re Interrogatories of the Senate, 
54 Colo. 166, for several reasons were assigned for these refusals. 

®* In re Penitentiary Commissioners, 19 Colo. 409; and In re Leasing 
of State Lands, 27 Colo. 99. 

"In re Appointments by the Governor, etc., 21 Colo. 14; and In re 
Assessment of Property, etc., 25 Colo. 296. 

^^ In re House Resolutions, etc., 15 Colo. 598; In re Assessment of Pro- 
perty, etc., 25 Colo. 296; and In re SB. No. 142, etc., 26 Colo. 167. 

98 In re Chap. 6, Sess. L. 1890, 8 S. D. 274; and In re House Resolution 
No. 30, 10 S. D. 249. 

100 In re Construction of Consritution, 3 S. D. 548. 

"1 In re Board of Purchase and Supplies, etc., 37 Nebr. 425. 



INTERPRETATION OF ADVISORY OPINION CLAUSES 187 

them in regular judicial proceedings, the legal rights of indivi- 
duals cannot suffer from the giving of those opinions. This 
was recognized in the two Massachusetts cases where actual ex 
parte opinions were given,^^^ as well as in Colorado,^^^ and in an 
extra-constitutional advisory opinion in Connecticut. ^'^^ The 
Canadian justices have even given an opinion in a case that was 
practically an appeal from a criminal judgment, relying on the 
fact that they would not be bound thereby.^°^ Perhaps the preva- 
lence of the "ex parte^^ argument in Colorado is due largely to the 
pecuKar theory entertained by the Colorado justices for some 

i°2 In Adams v. Bucklin, 7 Pick. 125, the court states clearly that they 
do not consider Opin. of the Justices, 7 Pick. 130 n., binding upon them; 
and in Opin. of the Justices, 5 Mete. 596, they say: "Such an opinion, with- 
out notice to the parties, would be contrary to the plain dictates of justice, 
if such an opinion could be considered as having the force of a judgment, 
binding on the rights of parties. But . . . as an opinion upon an abstract 
question, without any investigation of facts, and without argument, must 
be taken as an opinion upon the precise question proposed, which cannot 
aflfect the rights of parties, should they hereafter be brought before the court 
in a regular course of judicial proceeding, we have thought it best ... to 
submit an opinion upon the questions proposed." 

^°3 In In re Fire and Excise Cormnissioners, 19 Colo. 482, the court 
gave a real ex parte opinion because of "the gravity of the situation, and 
the impending danger to life and property," and in the subsequent cases 
of People V. Martin and People v. Orr (19 Colo. 565), the court said: "But 
it could not be assumed that such ex parte statement could not be contro- 
verted, nor that an opinion based thereon might not require modification 
when the other side should present their cause in court as they had a right 
to do. . . . No opinion based upon such statement could have been made 
to bind the parties contending for ofiScial place upon the fire and police 
board. " 

104 "Q^j. action being extra-judicial, and really rather our individual 
than official action, it cannot be of any binding character whatever. No 
judge of the Supreme or Superior Court, in any case hereafter before him, 
would be bound by our opinion. We ourselves should not be bound by it. " 
— Reply of the Judges, etc., Z^ Conn. 586. 

^^ In re Criminal Code, 43 Can. S. C. R. 434; but the Okla. justices 
declined to give any advice in a similar case — In re Opin. of the Judges (8 
Okla. Cr. 467). 



188 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

time, that their advisory opinions had al! the force of a regular 
decision.^*^^ Thus the statement quoted above from In the 
matter of Senate Resolution, etc., 9 Colorado, 620, refers to an 
ex parte "adjudication;" and in In the matter of the Constitu- 
tionaUty of SB. No. 65, 12 Colorado, 466, the court frankly 
affirms that advisory opinions in Colorado "have all the force 
and effect of judicial precedents." Again, in In re House 
Resolutions, etc., 15 Colorado, 598, it is declared that regular 
decisions should not be "overruled" in advisory opinions. ^^^ 
The decision in People v. Martin and People v. Orr should have 
cleared away this misunderstanding; but the ex parte test is 
still appHed in later cases,^°^ and for the same reason, ^^^ and 
the justices continue to object to "review" previous decisions 

»o«See pp. 228-231 infra. 

"^ Compare the careful statement of the Massachusetts justices in a 
recent opinion: "It is not open to the justices in answering questions sub- 
mitted to them under the Constitution to attempt to overrule a decision 
made by the court in a cause between party and party, or to speculate upon 
the correctness of such a decision. If such a decision is to be overruled, 
it can only be after argument in another cause between party and party, 
where the rights of all can be fully guarded." In re Opin. of the Justices, 
115 N. E. 978 (Mass.) The itahcs are mine. 

^°8 See especially In re Appointments by the Governor, etc., 21 Colo. 
14; and In re Assessment of Property, etc., 25 Colo. 296. 

^"^The advisory opinion amendment was not "intended to sanction 
a practice whereby the rights of property or the title to an office or the 
construction of an existing statute should be determined in an ex parte 
proceeding in answer to either an executive or legislative question." — In 
re Appointments, etc., 21 Colo. 14. Also: "The various institutions 
whose rights are involved are not before the court, and they should not 
be concluded without a hearing." — In re State Board of Equalization, 24 
Colo. 446. Also see In re HB. No. 99, etc., 26 Colo. 140, and In re Leasing 
of State Lands, 27 Colo. 99. "To answer the questions would . . . involve 
a determination of private rights in an ex parte proceeding. It would neces- 
sarily determine the title to the office of Lieutentant-Governor and to whom 
the salary pertaining to such office properly belongs. " — In re Interrogatories 
of the Senate, 54 Colo. 166. "Rights may have arisen or attached which 
should not be determined in a purely ex parte proceeding." — In re SR. No. 
4, 54 Colo. 262. 



INTERPRETATION OE ADVISORY OPINION CLAUSES 189 

in advisory opinions, on the authority of In re House Resolu- 
tions, etc., 15 Colo. 598, though the same argument is not men- 
tioned again.^^° The dissenting opinion of Scott, J., in In re 
Interrogatories of the Senate, 54 Colorado, 166, gives the more 
approved theory^^^ and we think it can be shown^^ that the 
doctrine of In the matter of the Constitutionality of SB. No. 65, 
12 Colorado, 466, as to the binding effect of advisory opinions has 
since been thoroughly discredited in Colorado. It is to be hoped, 
then, that the justices in that State will yet come to recognize, 
that since the alleged reason for the ex parte test does not exist, 
the test itself should be abandoned, unless it can be placed on 
a more substantial basis. In this event, the South Dakota 
justices might again follow their neighbors' lead, this time 
in paths laid out on a more reasoned plan. 

The second answer may also apply to both, though in 
different degree. If the interrogator has need for the advice 
requested that he may know what course to pursue when 
important questions of a pubHc nature (though perhaps in- 
volving private rights) are presented, questions calling for exe- 
cutive or legislative, i.e. poHtical action, that the interests of 
the commonwealth may be promoted, should not consideration 
for the general welfare prevail over too scrupulous a regard 
for private rights? Salus populi suprema lex esto. Scott, 
J,, recognized this argument in In re Interrogatories of the 
Senate, 54 Colorado, 166, though perhaps he only intended 
to extend it to serious crises, such as existed in In re Fire and 
Excise Commissioners, 19 Colorado, 482, and In re SR. No. 
10, 33 Colorado, mi}^^ 

"° In re Assessment of Property, etc., 25 Colo. 296; and In re SB. No* 
142, etc., 26 Colo. 167. 

"^"I do not understand that the answer requested is anything but 
advisory, and may be reviewed or changed upon a more formal and complete 
investigation. " 

"2 See pp. 228-231 infra. 

"3 Cf . the statement in In re Opin. of the Justices, 190 INIass. 611: 
"These opinions . . . ought not to be given, except when needed in the 
consideration of an important matter of state that calls for official action." 



190 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

Thirdly, it may be replied that where, as in most of the cases 
cited in connection with this rule, the basis for the embarrass- 
ment of the justices is that parties whose rights are concerned 
are unrepresented,"^ it is, as a rule not difficult to secure the 
presentation of an argument for all interests concerned, if not 
from the parties themselves, because unascertained, at any 
rate from amid curiae. We have aheady seen how easily 
this is managed in the Canadian practice."^ Under the statute, 
the court is empowered to provide for the representation of the 
Dominion, any province, or any person or class of persons who 
may be interested in a question referred; notice is given of the 
date set for argument, and a right of hearing is assured."^ 
Furthermore if any interests affected are not in fact represented, 
the court can order argument in behalf of those interests by an 
amicus curiae at the public expense. In 1912"^ it was forcibly 
urged upon the Judicial Committee of the Privy Council that 
this did not assure representation of all interests, and that some 
might be prejudiced; but the Committee could not be persuaded 
that advisory opinions given under the Act would be "subver- 
sive of justice.""^ Counsel have appeared and arguments 

^" That this is an important element in the ex parte objection may be 
seen from In re SR. No. 10, etc., ZZ Colo. 307, where the court declared 
the proceeding was not ex parte because there were actual litigants (the 
parties in a governorship contest), though they were not litigants before 
the supreme court but before the legislature. Also see the remarks of 
Story, J., in Deb. Mass. Conv, 1820, pp. 489-90, and of ex- Justice Mor- 
ton in Deb. Mass. Conv. 1853, II, p. 685. 

"* See pp. 81 and 80 supra. 

"6 In In re Provincial Jurisdiction, etc., 24 Can. S. C. R. 170, the 
court directed that the Distillers' and Brewers' Association be notified of 
a hearing in which they would be interested. — Cameron, Supreme Court 
Practice, p. 268. Extra counsel were heard in In the matter of the Re- 
presentation, etc., Z?) Can. S. C. R. 594. 

"' Attorney-General for Ontario v. Attorney-General for Canada, 
(1912) A. C. 571. 

"^ Their chief reason for this conclusion probably was that the opinions 
had no binding force. 



INTERPRETATION OE ADVISORY OPINION CLAUSES 191 

have been heard on every question referred to the Canadian 
Supreme Court, at least since 1892. But certainly the justices 
of a supreme court do not need statutory or constitutional au- 
thority to bring about these same results. As a matter of 
fact, the representation of private interests which are affected 
is fairly common in the advisory opinions of the United States. 
The interested parties themselves have had their position 
presented by counsel in a good many cases,^^^ usually at the 
request of the justices.^^^ In New Jersey the statute that we 
have aheady mentioned provided for a ''full hearing and con- 
sideration, "^^^ and counsel were heard for both sides in the 
only application under the statute that has come to our atten- 
tion.^22 In one case under the criminal appeal statute of New 
York^23 argument was heard in behalf of the defendant, and in 
a North Carolina case^^ the judges intimated that if the matter 
submitted "were deemed by them doubtful, they would have 
been obliged to defer their answer until the parties or their 
counsel could submit their views." The New Hampshire 

"« Opin. of the Justices, 7 Pick. 130 n.; In re Opin. of the Justices, 193 
Mass. 605; In re Opin. of the Justices, 66 N. H. 629; Opin. of the Justices, 
72 N. H. 601; In re Opin. of the Justices, 75 N. H. 613; In re Opin. of the 
Justices, 77 N. H. 606; In re Penitentiary Commissioners, 19 Colo. 409 
In re Annexation and ConsoHdation, etc., 26 Colo. 136; In re HB. No 
99, etc., 26 Colo. 140; In re SB. No. 27, etc., 28 Colo. 359; In re SR. No 
10, etc., 33 Colo. 307; In re HR. No. 10, 50 Colo. 71; Questions Propounded 
by Governor, etc., 50 Colo. 84; In re Interrogatories of the Senate, 54 Colo 
166; In re Quaere, etc., 31 Nebr. 262; In re House Roll 284, 31 Nebr. 505; 
In re Board of Sinking Fund Commissioners, 32 S. W. 414 (Ky.); and Res- 
publica V. De Longchamps, 1 Dall. Ill (Pa.). 

120 wrhen the senate and house of representatives were in doubt as to 
the financial prerogatives of the senate, the Massachusetts justices heard 
arguments from both sides before submitting an opinion. Opinion of the 
Justices, 126 Mass. 557. 

"^ One of the constitutional amendments proposed in the New York 
Convention of 1915 (see p. 68 supra) contained a similar phrase. 

1" In re an Act, etc., 83 N. J. L. 303. 

"3 People V. Green, 1 Denio 614. 

"*Opin. of the Justices, 31 N. C. App. 



192 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

justices once delayed an opinion for some time in order to give 
an opportunity for interested parties to appear, but none came.^^ 
In a South Dakota case, both parties offered to appear, but 
the court decUned to act, on other grounds.^^^ The question 
did not trouble the Florida justices much, under the first form 
of the clause, for in one case they gave an opinion, where one 
interested party offered to appear and the other refused. ^^ 
In a few instances arguments have been heard from one party 
only, but it may fairly be presumed that opposing interests 
would have been admitted to a hearing if they had appeared.^^^ 
Also it is quite possible for amid curiae to render assistance.^^ 
Arguments from such sources alone would go far to meet this 
^^ex parte''' objection, for it must be remembered that the 
justices are asked to pass only upon questions of law, and either 
the appHcation of the general principles to a particular set of 
facts is left to regular cases inter partes, or, if the principles 
are based upon certain facts alleged in the inquiry, it is quite 
clear that there is no objection to a subsequent litigant proving 
a different set of facts.^^^ 

A fourth answer that might legitimately be offered is that 
so-called ^^ex parte'' opinions have in fact often been given in 
cases where private rights, both personal and property, were 
involved in the questions referred. It has aheady been men- 
tioned that over half of the advisory opinions rendered in 
obedience to constitutional requirement in the United States 
may be so classed. An enumeration would require considerable 
space and seems to be unnecessary. Examples from any of 
the States where the clause has been tried may readily be found 
among the classified cases in Chapter II. 

"6 In re Opin. of the Justices, 73 N. H. 621. 

i2« In re Opin. of the Judges, 34 S. D. 650. 

^^^ In the matter of the Executive Communication, etc., 12 Fla. 653. 

128 In re Opin. of the Justices, 76 N. H. 588; In re HB. No. 165, 15 Colo. 
593, 595; In re House Resolutions, etc., 15 Colo. 598; In re HB. No. 10, 
etc., 15 Colo. 600; and In re Appropriations, etc., 25 Nebr. 662. 

"<> See pp. 206-207 infra. 

"0 People V. Martin, and People v. Orr, 19 Colo. 565. 



INTERPRETATION OF ADVISORY OPINION CLAUSES 193 

(b) Questions of private right should only be adjudicated in 
regular proceedings in court. Of the truth of this there can be 
no doubt ;^^i but emphasis must be placed upon the word "ad- 
judication." The justices have sometimes made the rule as 
here stated an excuse for dechning to give advisory opinions. ^^^ 
In this aspect all the objections apply to it that were raised in 
the examination of the preceding rule. 

(c) No advisory opinions should be given in advance of pos- 
sible cases dealing with the questions referred. (?) 

{d) Existing statutes should not be construed in advisory 
opinions. (?) It will be convenient to consider these two rules 
together for the second is merely the logical consequence of 
the first, since it is always possible that cases will grow out of 
existing statutes. As formulated in (c), the earliest appearance 
of this proposition was in a Massachusetts case of 1877.^^^ 
In addition to the criticisms of this case aheady suggested/^^ 
it may be added here that the refusal of the justices is not con- 
sistent with earUer cases/^^ and was not followed in scores of 
later cases. ^^^ The authority of this opinion has not been re- 
cognized in a single instance in any other State. It was cited 

1" See notes 102, 103, 108 in (a) supra. 

1^2 Advisory Constitutional Opinion, etc., 37 Mo. 135; In the matter 
of Inquiries Submitted, etc., 58 Mo. 369; In re HR. No. 25, 15 Colo. 602; 
In re Appointments by the Governor, etc., 21 Colo. 14; and In re Constitu- 
tionality of SB. No. 196, 23 Colo. 508. 

133 Opin. of the Justices, 122 Mass. 600. 

i^'tSee pp. 168-170 supra. 

135 Opin. of the Justices, 7 Pick. 130 n.; Opin. of the Justices, 3 Cush. 
584; Opin. of the Justices, 1 Mete. 572; Opin. of the Justices, 1 Mete. 580; 
Opin. of the Justices, 5 Mete. 587; Opin. of the Justices, 5 Mete. 591; Opin. 
of the Justices, 5 Mete. 596; Opin. of the Justices, 9 Cush. 604; Opin. of the 
Justices, 8 Gray 20; and Opin. of the Justices, 9 Allen 585 (here a later case 
actually arose — Green v. Commonwealth, 12 Allen 155). 

i3«0pin. of the Justices, 132 Mass. 600; Opin. of the Justices, 138 
Mass. 601; Opin. of the Justices, etc., 145 Mass. 587; In re Public Lighting, 
150 Mass. 592; Opin. of the Justices, 154 Mass. 603; Opin. of the Justices, 
etc., 155 Mass. 598; etc. 



194 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

in the minority opinion of a Maine justice in 1881/^^ but his 
advice was not withheld. However, opinions have been refused 
in other States, on similar grounds.^^^ More often the rule we 
are discussing has been announced obiter, ^^^ or is so associated 
with other reasons for refusal that it is not clear which was the 
determining test.^^*^ From the cases cited in the notes it is 
evident that it rests upon rather slender authority. In New 
Hampshire it is supported only by dicta, and in a 1909 case,^^^ 
the justices actually go out of their way to give an opinion on 
a point that could "only be properly questioned in a judicial 
proceeding" in order to assist the governor and council in 
deciding a question of pubhc poHcy. In Maine, it only appears 
ohiter, and that, too, in minority dissenting opinions. In both 
these States it has been correctly stated that extra- judical 
opinions in advance of possible cases are to be denied except 
upon questions within the scope of the advisory opinion clause 
of the const] tution,^^^ though the scope is construed rather 
narrowly in the Maine cases. The Florida justices are credi- 
ted with a single weak dictum}^'^ South Dakota and Nebraska 

1" Question Submitted, etc., 72 Me. 542. 

"8 In the matter of the N. Mo. R. R., 51 Mo. 586, and Opin. of the 
Court, etc., 55 Mo. 497, (advice would have been ex parte in these cases); 
In the matter of the ConstitutionaHty of SB. No. 65, 12 Colo. 466; In re 
Appropriations, etc., 13 Colo. 316; and In re Penitentiary Commissioners, 
19 Colo. 409. 

"^ Opin. of Justices, 70 N. H. 638 (here advice would really have been 
ex parte) ; In re Opin. of the Justices, 76 N. H. 597; In re Opin. of the Justices, 
76 N. H. 601; Opin. of the Justices, 58 Me. 590; In re Priority of Legislative 
Appropriations, 19 Colo. 58; and In re Construction of Constitution, 3 
S. D. 548. 

"" In re Opin. of Supreme Court, 39 Fla. 397. 

"1 In re Opin. of the Justices, 75 N. H. 613. 

i« Opin. of the Justices, 67 N. H. 601 ; In re Opin. of the Justices, 
76 N. H. 597; and Opin.s of the Justices, 95 Me. 564. 

^*3 Under the first form of the clause, they declared that it made no 
difference whether a case might come before the court or not. In the mat- 
ter of the Executive Communication, etc., 12 Fla. 653. 



INTERPRETATION OE ADVISORY OPINION CLAUSES 195 

are responsible for two, on the authority of the leading Colo- 
rado case.^^ Apart from the lone Massachusetts opinion, 
then, there are just five unquestioned precedents in favor of 
this rule, two in Missouri and three in Colorado.^^^ In both 
the Missouri cases the State's rights were clearly involved, a 
circumstance which is undoubtedly embarrassing to justices, 
whether with reason or not. The same is true of the third Colo- 
rado case, while the other two proceed upon the false h5^othesis 
that advisory opinions are binding adjudications. 

There is every reason, then, for rejecting the rule as here 
promulgated. There is no ground for it historically; the 
EngHsh judges at most attempted to draw the fine at giving 
opinions in pending cases or criminal cases that were practi- 
cally upon them. In an appeal from a Canadian advisory 
opinion, the Judicial Committee of the Privy Council gave 
their opinions on questions which might arise in Htigated 
cases,^*^ and the Canadian justices foUow the same practice.^^^ 
The United States practice furnishes httle in favor of the rule 
and much against it. As in Massachusetts, so in the other 
States referred to above, it has been disregarded in so many 
opinions that space will not permit an enumeration. Finally, 
theoretical considerations are against it. The four arguments 
adduced under (a) supra are of equal force here, and may be 
supplemented by others. If it be claimed that the probabiHty 
of future cases is a reason for refusal, an obvious reply is that 
an opinion from the justices will reduce such probability to a 

^^ In re Construction of Constitution, 3 S. D. 548; and In re Board of 
Purchase and Supplies, etc., 37 Nebr. 425. 

"^ In two instances where advice was sought under a statutory re- 
quirement, the rule was introduced as one reason for declining to comply. 
Hayburn's Case, 2 Dall. 409; and In the matter of the Application of the 
Senate, 10 Minn. 78. 

"® Attorney-General for Ontario v. Attorney-General for Dominion, 
et al., (1896) A. C. 348. 

^*' In re References, etc., 43 Can. S. C. R. 536, approved in Attorney- 
General for Ontario v. Attorney-General for Canada, (1912) A. C. 571. 



196 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

minimum, thus saving a great deal of litigation, while to the 
case that does survive the justices can still come absolutely 
free to change their minds upon further argument. But it 
need not be admitted that the probability that cases will arise 
is a reason for refusing advice. If the constitution plainly 
imposes a duty upon the justices to give their opinions upon 
certain kinds of questions coming from named sources, why 
should the probabihty of embarrassment to the justices or 
to private citizens, or of any other contingency, be an excuse 
for neglecting that duty? Under the American constitutional 
system, a department of the government is entitled to refuse 
performance of a task that is on its face within the duties 
imposed upon it by the constitution, only if its independence 
is threatened. The possibihty of an interference with that 
independence "is such a remote hypothesis that it cannot 
form the basis of an argument for the non-performance of a 
duty."^^« 

If advisory opinions are not to be given when they touch 
upon private rights that may possibly come before the justices 
in regular judicial proceedings, it would seem to follow that 
existing statutes should not be construed or examined as to 
constitutionality, since future cases may very easily necessitate 
such a construction or examination. Yet only in one State 
have the justices taken this logical step.^^^ Missouri and 
Florida (after 1875) should not be considered because of the 

"8 H. A. Dubuque in Am. L. Rev. XXIV, p. 369, at p. 397. 

"^ In two Massachusetts cases, the justices suggest that if a question 
calls for the construction of a statute under which private rights may have 
arisen, they will be particularly careful to see that the question falls within 
the advisory opinion clause; in both, opinions were refused because there 
was no solemn occasion. Functions of Judiciary, 148 Mass. 623; and In 
re Power of Legislature to Require Opinion, 150 Mass. 598. It is submitted 
that insofar as the partial refusal of In re Opinion of the Justices, 115 N. E. 
921 (Mass.) is rested upon the rule against construction of existing statutes, 
the authorities referred to by the justices do not bear out their assertion 
that this rule "has been said in numerous opinions ... to be sufficient 
to require them to decluie to express an opinion." 



INTERPRETATION OF ADVISORY OPINION CLAUSES 197 

word "constitutional" in their advisory opinion provisions. 
Still it may be mentioned in passing that the interpretation of 
this in Missouri was very narrow. It was announced obiter in 
Advisory Constitutional Opinion, etc., 37 Missouri 135: ques- 
tions of constitutional law meant questions which arise upon 
the constitution alone, i.e., "some question of the proper con- 
struction and true meaning of some provision, clause or words 
contained in the Constitution." Now it is obvious that the 
determination of the constitutionahty of a statute will generally 
depend upon the true meaning of words or phrases in the con- 
stitution, and in fact twice the Missouri justices passed upon 
the constitutionality of statutes extra- judicially.^^^ But they 
refused to do so in 1874^^^ and declared it was their province 
to give an opinion as to the constitutionahty of an act only 
when the question of validity was raised in a regular case. 
In Florida the justices have consistently refused to give opinions 
upon questions dealing with executive powers or duties under 
existing statutes, ^^^ with the r)ossible exception of In re Opinion 
of the Justices, 68 Florida, 560. 

It was reserved for the Colorado practice to develop the 
rule that completed legislation should not be construed or its 
constitutionality considered in advisory opinions. It is found 
first as a dictum in that same all-comprehensive case of 1889.^^^ 
"Executive questions must be exclusively juris publici, and 
. . . legislative questions must be connected with pending 
legislation, and relate either to the constitutionahty thereof 
or to matters connected therewith of purely pubhc right." 
The first part of the delimitation, relating to the executive, 

^^^ Advisory Constitutional Opin., etc., 37 Mo. 139; and Opin. of Su- 
preme Court Judges, etc., 55 Mo. 295. 

^"In the matter of Inquiries Submitted, etc., 58 Mo. 369. 

^^2 In re Opin. of Supreme Court, 39 Fla. 397; Advisory Opin. to the 
Governor, 50 Fla. 169; In re Opin. of Justices, 54 Fla. 136; In re Opin. of 
Judges, 62 Fla. 4; In re Advisor\' Opin. to the Governor, 64 Fla. 1; In re 
Opin.s of the Justices, 69 Fla. 632; and In re Opin. of the Justices, 69 Fla. 653. 

"3 In the matter of the Constitutionahty of SB. No. 65, 12 Colo. 466. 



198 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

will be taken up a little later. The argument for the second 
was that the legislative history of the State before the advisory 
opinion was introduced made it clear that "the primary and 
principal purpose of the amendment" was to enable the general 
assembly to avoid the "injurious consequences arising from 
unconstitutional legislation;" and that this is corroborated 
by the fact that the general assembly of 1887 propounded 
only questions as to the constitutionahty of pending bills. 
There are two objections to this. In the first place, it is sub- 
mitted that such criteria of interpretation should only be 
employed when the words of the amendment are ambiguous, 
and then only to decide between two possible meanings, never 
to supplement or modify express provisions. ^^ The natural 
and ordinary meaning of words should prevail, if possible.^^ 
But, secondly, even if this is a case where history and contem- 
porary circumstances may legitimately be resorted to, the 
conclusion of the justices cannot be supported. The history 
of the advisory opinion itself should be consulted. It was not 
by accident that the framers of the amendment employed the 
well-estabhshed New England phraseology, which had itself 
been largely derived from the earlier Enghsh practice. Is it 
not reasonable to suppose, when legislators use a "phrase 
consacree," a particular and unusual assemblage of words 
which have been for a century attached to a single institution, 
that they intended to transfer that institution to their own 
system? Why, then, if history was to guide their interpreta- 
tion, did not the justices endeavor to search out the character- 
istics of the advisory opinion as it existed when it was incor- 
porated into the Colorado constitution? If the general assem- 
bly of 1885 had wished to limit their privilege of extra-judicial 
consultation to questions touching pending legislation, they 
could certainly have found words and phrases more clearly 

i"Cf. Willoughby, Const., I, p. 33; Story on the Const., s. 407; and 
Cooley, Constitutional Law, p. 388. 

«5 Marshall, C. J., in Gibbons v. Ogden, 9 Wheat. 1, at p. 188. 



INTERPRETATION OF ADVISORY OPINION CLAUSES 199 

expressing that intention than those appearing in the amend- 
ment, which, indeed, on the surface suggest no ambiguity at 
all. The argument from contemporary construction is meaning- 
less, for the majority of inquiries from legislatures in any State 
naturally are connected with pending legislation. 

After this dictum of 1889, the Colorado cases on existing 
statutes are irreconcilable. Before that time there had been 
four opinions in which existing legislation was construed ;^^^ 
in every instance it is true that there had been no chance for 
private rights to arise under the statutes, but this point is not 
mentioned. However, the same course is followed in four 
cases of a later date as well.^^^ The seed sown in 1889 first 
bore fruit in 1891. The house asked whether the State treasur- 
er could credit county treasurers with moneys paid out by them 
as scalp bounties under an act of 1889 and whether the present 
State treasurer was entitled to an increase in salary provided 
for by an act of 1891.^^^ Here it was clear that private rights 
had arisen under existing laws, and for that reason an answer 
was refused, on the authority of In the matter of the Constitu- 
tionahty of SB. No. 65, 12 Colorado, 466 (!). This was fol- 
lowed, under similar circumstances, in four cases,^^^ in the 
first of which an actual htigation at an early date seemed quite 
probable, and an opinion would have been ex parte. In another 
refusal, the court said private rights "may have arisen or 
attached which should not be determined (!) in a purely ex 
parte proceeding, " and then added that, " so far as the vaHdity of 
legislation is involved, in response to legislative questions, it is 
confined to proposed acts, in order that unconstitutional legis- 

^^^ In re Election of District Judges, 11 Colo. 373; In re SR. Relating 
to SB. No. 45, 12 Colo. 339; In re HR. Relating to HB. No. 218, 12 Colo. 
359; and In re Question Propounded by the Governor, 12 Colo. 399. 

^^^ In re General Appropriation Bill, 16 Colo. 539; In re Contracting 
of State Debt by Loan, 21 Colo. 399; In re Casual Deficiency, 21 Colo. 403; 
and In re Questions of the Governor, 55 Colo. 17. 

158 In re HR. No. 25, 15 Colo. 602. 

1" In re Penitentiary Commissioners, 19 Colo. 409; In re Appointments 



200 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

lation may be avoided, and cannot call for a construction of 
acts already passed. "^^^ Here the rule is laid down quite badly 
(though obiter) altogether apart from questions of private 
rights.^^^ The question of private rights and the construction 
of existing statutes are plainly associated in the most recent 
refusal of the Colorado justices/^^ but, curiously enough, none 
of the above cases is mentioned, and the doctrine is rested 
upon Z2) Colorado, 307 (!). It is impossible to say whether or 
not this alleged rule was responsible for this refusal, for the 
justices also objected to the absence of any pending bill, on 
the insecure authority of 12 Colorado, 466. On the other 
hand, statutes have been construed even where it is almost 
certain that private rights must have arisen, once in a special 
exigency, with a warning that it was not a precedent,^^ five 
times with no reservations at all.^^ Also in two instances, 
the justices stated general principles leaving the interrogator 
to apply them to particular statutes.^^^ 

Thus it appears that even in Colorado the weight of prece- 
dent is against the rule, though it might be repHed that in the 

by the Governor, etc., 21 Colo. 14; In re Constitutionality of SB. No. 196, 
23 Colo. 508; and In re Leasing of State Lands, 27 Colo. 99. 

16" In re SR. No. 4, 54 Colo. 262. 

1" So too in In re University Fund, 18 Colo. 398. 

1*2 In re Interrogatories of the House, 162 Pac. 114i. 

i""But inasmuch as the rights of the public are involved, and the 
interests of the State institutions concerned are so vitally affected, and the 
results to them would be so disastrous were the answer, which we feel con- 
strained to give, wdthheld until after the present session of the legislature, 
we have concluded to depart from such practice and answer the question 
submitted. This, however, must not be taken as a precedent for the right 
in general of the legislature to ask for information as to the constitutionality 
of an existing act. " — In re ConstitutionaHty of an Act, 21 Colo. 46. 

1" In re Board of Capitol Commissioners, 18 Colo. 220; In re Leasing 
of State Lands, 18 Colo. 359; In re Certificates of Indebtedness, 18 Colo. 
566; In re Canal Certificates, 19 Colo. 63; and In re Questions by the Gover- 
nor, 55 Colo. 105. 

"*In re Appropriations by General Assembly, 13 Colo. 316; and In 
re Continuing Appropriations, 18 Colo. 192 (here a case was pending in 
the supreme court.) 



INTERPRETATION OF ADVISORY OPINION CLAUSES 201 

cases where opinions were given, the rule was simply waived, 
not rejected. But in other States, the practice is overwhel- 
mingly against it. In Massachusetts, New Hampshire, Maine, 
Rhode Island and South Dakota, there have been ninety-seven 
opinions where the construction of existing statutes was called 
for, and not once has this been alleged as a reason for with- 
holding advice. The same is true of six extra-constitutional 
opinions.^^^ The rule had no place in the Enghsh practice,^" 
and existing legislation is explicitly mentioned in the Canadian 
advisory opinion statutes.^^^ 

In theory, too, the rule is unsound. If the possibiUty 
that private rights will accrue under a statute is a good reason 
for declining to construe it in an advisory capacity, it is not 
perceived why pending legislation should not fall under the 
ban. Why should an opinion of a particular provision, pro- 
nounced after its enactment, give any more trouble to a judge 
or result in any greater prejudice to private rights than if it 
were pronounced before its enactment? As a matter of pohcy, 
if the justices can ehminate a great deal of htigation in advance, 
by indicating their expert views on legislative acts, why should 
they not do so? Why should it be necessary for the people 
to run the risk of error in matters that often are not settled 
for years after a statute is passed?^^^ But, we are reminded, 
extra-judicial opinions would not settle these questions anyway, 

166 0pm. of the Judges, etc., 30 Conn. 591; In re Babcock, 21 Nebr. 
500; In re Appropriations for Deputies, etc., 25 Nebr. 662; In re Quaere, 
etc., 31 Nebr. 262; In re Board of Purchase and Supplies, etc., 37 Nebr. 
425; and Opin. of the Judges, etc., 37 Vt. 665. 

1" Macqueen, House of Lords, p. 53; cf. opinions of the Lords in Mc- 
Naghten's Case, 10 CI. and Fm., 200. 

"^ Nearly all the Canadian opinions involve the construction of statutes. 

"^"It may be thought, and the impression will be confirmed when 
we consider as well the minuteness of the State Constitutions as the pro- 
fusion of State legislation and the inconsiderate haste \^'ith which it is 
passed, that as the risk of a conflict between the Constitution and statutes 
is great, so the inconveniences of a system under which the citizens can- 
not tell whether their obedience is or is not due to a statute must be serious. 



202 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

since they have no binding force. That is true, but they would 
measurably diminish the chance of error, for, as a rule, they 
are remarkably sound; as will be seen,^^'^ they are commonly 
cited in regular cases, and have rarely been overruled in 
later cases dealing with the same subject matter. It might 
be added that even the regular decisions of our supreme courts 
do not irrevocably settle questions of law, for they are occa- 
sionally rejected by a later court. Again, not only is it possi- 
ble that years may pass before the judicial attitude towards 
particular statutes is ascertained in the ordinary course of 
events,^^^ but there are many questions which it is quite difficult 
to get before the courts in htigated cases at all. Finally, it 
may be added, that in so far as the rule is defended on the 
ground of an alleged interference with private rights, the argu- 
ments already urged against the ex parte objection are in point. 
(e) Questions referred by the legislature for advisory opinions 
must he puhlici juris. (?) This, too, is a rule which is practically 
Umited to the Colorado practice. There are but two vague 
suggestions of it in other States. In the earUest New Hampshire 



How is a man to know whether he has really acquired a right under a 
statute? How is he to learn whether to conform his conduct to it or not? 
How is an investor to judge if he may safely lend money which a statute has 
empowered a community to borrow, when the statute may be itself subse- 
quently overthrown?" — Bryce, Amer, Commonwealth, Pt. II, Ch. 37. 

1" See pp. 234-236 infra. 

"i"To settle at once and forever a disputed point of constitutional 
law would often be a gain both to private citizens and to the organs of the 
government. Under the present system there is no certainty when, if 
ever, such a point will be settled. Nobody may care to incur the trouble 
and expense of taking it before the court. A suit which raises it may be 
compromised or dropped. When such a question, after perhaps the lapse 
of years, comes before the supreme court and is determined, the determina- 
tion may be different from what the legal profession has expected, may alter 
that which has been beheved to be the law, may shake or overthrow private 
interests based upon views now declared to be erroneous." — Bryce, Amer. 
Commonwealth, I, p. 352. 



INTERPRETATION OF ADVISORY OPINION CLAUSES 2 C J C 

case/^2 the justices said: "We are inclined to believe that the 
constitution of this state did not contemplate that the opinion 
of the justices of the superior court should be required upon 
a mere question of right between the legislature and individuals, 
but upon important questions of a nature altogether public." 
But they were embarrassed here by the ex parte nature of the 
inquiry, and there are many later New Hampshire opinions 
upon questions by no means altogether pubhc in their nature. 
A question almost identical with that in 62 New Hampshire, 
704, was referred to the Missouri justices in 1865;^^^ an opinion 
was refused for the reason that the question was too vague and 
general, but the justices seized the opportunity to announce 
that "questions should be important in reference to the pubhc 
interest." As in New Hampshire, the test was not observed 
in later cases, and was not mentioned again in this form. 

The cause for its appearance in Colorado is not far to seek. 
Unfortunately, the advisory opinion was incorporated into 
the constitution as an amendment to the article which gave 
the supreme court "power to issue writs of habeas corpus, 
mandamus, quo warranto, certiorari, injunction, and other 
original and remedial writs." The court had aheady held that 
this original jurisdiction of the court should only be used in 
cases involving questions publici juris, i.e., "where the interest 
of the state at large is directly involved; where its sovereignty 
is violated, or the liberty of its citizens menaced; where the 
usurpation or the illegal use of its prerogatives or franchises 
is the principal, and not a collateral, question. "^^"^ In the 
1889 case to which we have so often ref erred, .^"^^ Hehn, C. J., began 
his exposition of the advisory opinion clause by saying it was 
merely an enlargement of the original jurisdiction granted 
in Article VI, section 3, in the first place, adding to the hst of 

i^^Opin. of the Court, 62 N. H. 704. 

"3 Advisory Constitutional Opinion, etc., 37 Mo. 135. 

''' Wheeler v. No. Colo. Irr. Co., 9 Colo. 248. 

1^5 In the matter of the Constitutionahty of SB. No. 65, 12 Colo. 466. 



204 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

writs there specified "an unique and important proceeding.'^ 
Referring to Wheeler v. Northern Colorado Irrigation Company, 
he continued: "All of the reasons relied upon for confining the 
writs specified in section 3 of Article VI to questions puhUci 
juris apply with even greater force to the novel proceeding 
authorized by the provision before us; for, while this proceeding 
is original, and in that respect similar to the other original pro- 
ceedings referred to, yet it possesses characteristics pecuhar 
to itself. Not only should its operation be confined to questions 
publici juris, but, as we shall endeavor to show, even questions 
of this character should rarely be presented or considered. It 
will be observed that the authority conferred is accompanied 
by an express limitation. While the question must be one 
relating to purely public rights, it can only be propounded 
upon solemn occasions, and it must possess a peculiar or in- 
herent importance not belonging to all questions of the kind." 
Finally he stated the rule: "We are of the opinion that execu- 
tive questions must be exclusively jwm publici, and that legis- 
lative questions must be connected with pending legislation, 
and relate either to the constitutionality thereof or to matters 
connected therewith of purely pubhc right." The court has 
in effect interpolated the phrase ^' publici juris ^^ into a sentence 
that is perfectly clear and reasonable without it. It is a clear 
case of judicial legislation. It would be as reasonable to argue 
that, because the advisory opinion requirement is, in Rhode 
Island, included in the same section with a provision for the 
instruction of juries, therefore the advisory opinion practice 
should be limited by the doctrines of the law of jury instruc- 
tion. The advisory opinion clause was placed in Article VI, 
section 3, of the Colorado constitution for the obvious reason 
that it provided for the exercise of an original jurisdiction, 
and that section is the only section dealing with original juris- 
diction. It is true that it is an enlargement of original juris- 
diction, but why does it follow that it is an enlargement of 
the particular original jurisdiction already granted and is sub- 



INTERPRETATION OF ADVISORY OPINION CLAUSES 205 

ject to all the constitutional and judicial restrictions imposed 
thereon? 

A cursory examination of the Colorado opinions will show- 
that there has been no consistent conformity to the rule. Many 
times advice has been given on questions that are far from 
satisfying the definition of matters puhlici juris given in Wheeler 
V. Northern Colorado Irrigation Company, 9 Colorado, 248. 
However, the test has been appUed several times, ^''^ and 
has in three instances possibly brought about refusals.^''^ In 
these latter cases, other reasons are also assigned for an un- 
wilHngness to advise, so that it is doubtful whether there is 
a single precedent since In the matter of the Constitutionahty 
of SB. No. 65, 12 Colo. 466, which unquestionably supports 
the rule. 

4. It is not necessary that questions referred for advisory opinions 
should he of a judicial nature. 

The contrary was asserted ohiter in a single Missouri case 
of 1865: "It must be in its own nature, a judicial question, 
the final determination of which, by the organic frame of our 
Government, properly belongs to the Judiciary. "^^^ But this 
cannot be right; all questions of law are not questions which the 
judiciary can finally decide. The other two departments 
are entrusted with the determination of many questions of 
a legal nature, and if the constitution permits them to seek 
the assistance of the judges in deahng with these questions, 
it is not admissible to add the qualification quoted above. 
There is undoubted authority for the rule in Massachusetts 
and New Hampshire. In 1878, the Massachusetts justices 
were asked to advise as to the power of the senate to originate 

1^* In re Funding of County Indebtedness, 15 Colo. 421; In re Speaker- 
ship, etc., 15 Colo. 520; and In re SR. No. 10, etc., Z3 Colo. 307. 

1" In re HB. No. 99, etc., 26 Colo. 140; In re SB. No. 27, etc., 28 Colo. 
359; and In re Interrogatories of the Senate, 54 Colo. 166. 

1^8 Advisory Constitutional Opinion, etc., 37 Mo. 135. 



206 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

appropriation bills. ^^^ This was certainly a question not 
within the jurisdiction of the justices, but, after a careful 
review of the precedents in England and Massachusetts, they 
concluded that "it has never been considered essential that the 
questions proposed should be such as might come before them 
in their judicial capacity," and gave the opinion requested. 
The New Hampshire case involved the power of a legislature 
to elect a United States senator,^^^ a power plainly beyond 
judicial control; but an answer was given and the Massachu- 
setts case cited with approval. There are scores of cases 
where opinions were rendered unquestioningly on similar 
matters. 

5. The lack of legal assistance is not sufficient excuse for declining 

to give advisory opinions. 

Often the justices of our supreme courts have deplored the 
fact that, in exercising the advisory function, they did not enjoy 
the valuable assistance of professional briefs and argument. 
They have referred to this deprivation as a reason why advisory 
opinions should not be binding upon them but should always 
be open to reconsideration,^^^ as a reason for caution in giving 
such opinions only when necessary,^^^ ^^d as a reason why the 
conclusions in advisory opinions are entitled to less respect 
than those reached in regular cases,^^^ or are more subject to 
error.^^ In no case has a refusal been based upon it; but the 

"9 Opin. of the Justices, 126 Mass. 557. 

180 Opin. of the Court, 60 N. H. 585. 

181 Green v. Commonwealth, 12 Allen, 155; Opin. of the Justices, etc., 
25 N. H. 537; In re Opin. of the Justices, 76 N. H. 597; Opin. of the Justices, 
58 Me. 590; and Taylor v. Place, 4 R. I. 324. 

182 In re Bounties to Veterans, 186 Mass. 603; In re Opin. of the Justices, 
190 Mass. 611; In the matter of Senate Resolution on the Subject of Irri- 
gation, 9 Colo. 620; In re Construction of Constitution, 3 S. D. 548; and 
In re Board of Purchase and Supplies, etc., 37 Nebr. 425. 

183 Opin. of the Justices, 16 Me. 479. 

184 In the matter of the Constitutionality of SB. No. 65, 12 Colo. 466; 
In re Appropriations by Genera Assembly, 13 Colo. 316; and In re Railroad 
Commissioners, 15 Nebr. 679. 



INTERPRETATION OE ADVISORY OPINION CLAUSES 207 

complaint itself is unnecessary. The justices are not prevented 
from requesting argument by the counsel of parties interested. 
In fact we have seen that they have often heard such argu- 
ments.^^ Also, they can surely command the assistance of 
amid curiae in time of need. This has been done in New Hamp- 
shire^^^ and Nebraska/^^ and is a very common practice in 
Colorado/^^ where it is an important factor in many opinions.^^^ 
In one instance an opinion was refused partly because the 
time permitted was insufhcient for full argument and con- 
sideration.^^° It is scarcely true then, as stated by a Massa- 
chusetts justice,^^^ that the justices are necessarily without 
legal aid, or that ''It is impossible that there should be an 
argument. "^^^ 

6. The importance of a question and the solemnity of an occasion 
are relative matters depending upon the circumstances of each 
particular interrogatory. 

The assumption of a discretion to refuse advisory opinions 
if the reference did not disclose an important question and were 
not made upon a solemn occasion,^^^ called for the development 

185 See pp. 190-192 supra. 

i8« Opin. of the Justices, 53 N. H. 640. 

1" In re Senate File 31, 25 Nebr. 864; and In re House RoU 284, 31 
Neb r. 505. 

^^^ Amici curiae have appeared in at least fort3'-one cases to date. 

18^ Cf. the words of Hayt, C. J., in Parks v. Soldiers' and Sailors' Home, 
22 Colo. 86: "As some of the opinions to which reference has been made 
were delivered in answer to questions propounded by the executive, it is 
perhaps well to say, in passing, that it must not be assumed for this reason 
that full argument was not heard by the court, or that the opinions were 
pronounced except upon the most careful consideration. . . . No cause 
which has been determined by this court in recent years has received more 
serious consideration than did the examination of those interrogatories 
propounded by the executive." 

190 In re SB. No. 416, 45 Colo. 394. 

191 In re Opin. of the Justices, 190 Mass. 611. 

192 Story, J., in Deb. Mass. Conv. 1820, p. 489. 

193 See pp. 168-176 supra. 



208 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

of rules for testing importance and solemnity. Only one such 
rule has found much favor (see next section). The justices 
soon admitted that it was difficult to generalize, to frame a 
definition " which will fully cover every case which may arise, "^^ 
and began to test each case on its merits. So the only tangible 
harvest from the refusals founded on this discretion is a col- 
lection of paraphrases^^^ and the rule which follows. This 
state of affairs in itself is an argument against the right of the 
judges to pass upon the meaning of the phrases in question; 
for the failure to establish definite rules leaves the other depart- 
ments completely at a loss to know when they can obtain 
extra-judicial counsel and when not — one constitutionally 
authorized to receive advice may be denied it almost at the 
whim of the adviser. If it is true that the importance of a 
question and the solemnity of an occasion are relative matters, 
surely the facts upon which they depend are within the knowl- 
edge of the questioner rather than the questioned. 

7. The possibility of immediate executive or legislative action 
on the questions referred is not a necessary prerequisite for 
advisory opinions. 

Proceeding upon the hypothesis that they are free to refuse 
advisory opinions, if in their judgment the question is not im- 
portant or if the occasion lacks the proper solemnity, the justices 
of some States have developed the rule that the occasion of a 
reference cannot be solemn, within the meaning of the con- 
stitution, unless an answer will be of use in a pending matter. 
Others have said the importance of a question depended upon 

1^* Functions of Judiciary, 148 Ma?s. 623; Opin.s of the Justices, 95 
Me. 564; Opin. of the Court, etc., 55 Mo. 497; In the matter of the Consti- 
tutionahty of SB. No. 65, 12 Colo. 466; and In re Chapter 6, Sess. L. 1890, 
8 S. D. 274. 

^^5 E.g. "solemn occasion" means some serious and unusual exigency — 
Functions of Judiciary, 148 Mass. 623; "important question and solemn 
occasion" calls for some question of unusual magnitude and solemn con- 
cern for the pubHc good — Advisory Constitutional Opinion, etc., 37 Mo. 135. 



INTERPRETATION OF ADVISORY OPINION CLAUSES 209 

the same condition. In the appUcation of this general test, 
three particular rules have been evolved. 

(a) The question must be one ''which the body making the 
inquiry has occasion to consider in the exercise of the legislative 
or executive powers entrusted to them respectively. ''^'^^^ (?) This 
was quoted with approval, though obiter, in Opinion of the Jus- 
tices, 126 Massachusetts, 557. Later it was rephrased and 
apphed to "questions propounded with a view to further legis- 
lation on the subject matter of the statutes . . . referred 
to. "197 -^e have already noted that this refusal evoked an 
emphatic protest from the house of representatives and was 
generally disapproved.^^^ Nevertheless, the Massachusetts 
justices continued to apply the test to questions both from the 
legislature^^^ and from the governor and council,^^^ and in two 
instances withheld opinions when the questions failed to mea- 
sure up to the test.^^i Two refusals have been due to the same 
test in New Hampshire,^^^ while it was apphed with results 
favorable to the interrogator in a few other cases.^^^ It appeared 
in that State in a milder form than in Massachusetts, the jus- 
tices indicating^°^ that if a question submitted did not have 

196 Opin. of the Justices, 122 Mass. 600. 

197 "By a solemn occasion the constitution means some serious and un- 
usual exigency. It has been held to be such an exigency when the governor 
or either branch of the legislature having some action in view has serious 
doubts as to their power and authority to take such action under the consti- 
tution, or imder existing statutes." — Functions of Judiciary, 148 Mass. 623. 

198 See p. 170 supra. 

"9 In re Opin. of the Justices, 190 Mass. 611; and In re Opin. of the 
Justices, 211 Mass. 608. 

200 In re Opin. of the Justices, 216 Mass. 605. 

201 In re Opin. of the Justices, etc., 208 Mass. 614; and In re Opin. of 
the Justices, 211 Mass. 630. 

202 Opin. of the Justices, 67 N. H. 601; and In re Opin. of the Justices, 
76 N. H. 597. 

203 In re Opin. of the Justices, 73 N. H. 625; and In re Opin. of the 
Justices, 74 N. H. 606. 

20" Opin. of the Court, 60 N. H. 585. 



210 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

to be determined in the performance of legislative or executive 
duties, this was evidence that it was not an important question. 
Again, in 1906,^^^ they stated that it was sufficient if the in- 
terrogator may be called upon to act in matters necessarily 
involving the question. Also, in applying the test, they have 
displayed a good deal of laxity, sometimes presuming an inten- 
tion to take official action when the inquiry disclosed no such 
intention.^*^^ The same course has been pursued in Massachu- 
setts as well.^^^ Nowhere else has the test, expressed in such 
general terms, found a foothold, though there are a few dicta 
in its favor. In Statement and Questions Submitted, etc., 
70 Maine, 600, the justices, referring to an earlier case, say: 
"To put such questions, in the absence of facts requiring their 
solution, would be an abuse of the power of an executive to 
call for the opinion of the court upon questions of law, on solemn 
occasions." But they were laboring under the impression^^^ 
that the governor was bound to follow their advice.^^^ There is 
also a minority approval of Opinion of the Justices, 122 Massa- 
chusetts, 600, (not resulting in a refusal, however) in Ques- 
tion Submitted, etc., 72 Maine, 542. Finally the test is 
enunciated ohiter in Advisory Constitutional Opinion, etc., 37 
Missouri, 135. 

ih) Legislative questions must he connected with a pending 
hill. (?) This constriction of the test is peculiar to Colorado, 
and the test appears in no other form in that State. The germ 
of it is probably the statement in In the matter of Senate 
Resolution on the Subject of Irrigation, 9 Colorado, 620, that 
the purpose of the advisory opinion amendment could not have 

205 In re Opin. of the Justices, 73 N. H. 621. 

206 Opin. of the Justices, 72 N. H. 601; Opin. of the Justices, 72 N. H. 
605; and In re Opin, of the Justices, 75 N. H. 613. 

207 In re Opin. of the Justices, 190 Mass. 611; In re Opin. of the Jus- 
tices, 211 Mass. 608; and In re Opin. of the Justices, 216 Mass. 605. 

208 Statement and Questions Submitted, etc., 70 Me. 570. 

209 The same is true in In re HR. No. 30, 10 S. D. 249. 



INTERPRETATION OF ADVISORY OPINION CLAUSES 211 

been *'to exact in response to a legislative inquiry a wholesale 
exposition of all constitutional provisions relating to a given 
general subject, in anticipation of the possible introduction 
or passage of measures bearing upon particular branches of 
such subject." The justices went on to say that the matters 
mentioned did not appear to be covered by any pending acts 
and that they were involved in cases then before the courts. 
This was a perfectly sound reason for the refusal; but that these 
same justices did not intend to make the existence of a pending 
bill an absolute test for legislative inquiries may be seen from 
their rephes in other cases where no bills were pending.^^^ Yet 
it was quoted as an absolute test in 1888,^^^ though the existence 
of a pending bill was assumed in that case.-^^ Stated in this 
form, it was incorporated in Helm, C. J.,'s sweeping exposition 
of the advisory clause in In the matter of the Constitutionality 
of SB. No. 65, 12 Colorado, 466, and so into the later practice. 
This rule, too, was bolstered up by a reference to the assumed 
intention of the framers of the amendment and to the con- 
temporary practice. The latter argument is far from convin- 
cing here, for of the seventeen questions referred by the legis- 
ture of 1887, six were not connected with pending bills, and 
only one was denied an answer (on other grounds at that). The 
test is reasserted in seven or eight later cases, but wherever 
it is attended by a refusal, other reasons are also given.^^^ It 
has been stretched to mean that there must be a strong proba- 
bility that the biU will pass as submitted to the supreme court,^^^ 

21° In the matter of Senate Resolutions, etc., 9 Colo. 626; In the matter 
of House Resolution, etc., 9 Colo. 622; In re Senate Resolution, etc., 9 Colo. 
630; and Veto Power, 9 Colo. 642. 

211 The only justice left over from the 1887 court was Hehn who had 
now become chief justice. 

212 In re SR. Relating to Internal Improvement Fimd, etc., 12 Colo. 285. 

213 In re a Bill, etc., 21 Colo. 29; In re Bill, etc., 23 Colo. 504; In re HB. 
No. 495, etc., 26 Colo. 182; In re SR. No. 7, 29 Colo. 350; In re SB. No. 416, 
45 Colo. 394; and In re SR. No. 4, 54 Colo. 262; In re Interrogatories of 
the House, 162 Pac. 1144. 

21* In re a BUI, etc.. 21 Colo. 29. 



212 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

and then that it must have at least passed the house in com- 
mittee of the whole or on a second reading,^^^ and that further 
amendments are not in contemplation.^^^ On the other hand 
an opinion has been refused after the bill has passed the third 
reading.-^' If all these limitations were accepted as valid, 
legislative questions could be put only when bills had reached 
their final form and were practically certain of passing upon 
the third reading if the constitutionahty were approved by 
the supreme court. This may or may not be desirable, but it 
is certainly difficult to start from the advisory opinion clause 
and reach such a conclusion. Not only is there no clear-cut 
precedent in Colorado for test (b), but many times the justices 
have answered legislative inquiries that were not within the 
test, and without demurring.^^* There is a single case in 
Massachusetts where this same test was suggested, the justices 
stating that "a definite enactment to a specific end must be 
under serious consideration before it can be said that a 'solemn 
occasion' has been presented within the meaning of those words 
in the Constitution. "^^^ But here the real reason for decHning 
an answer was that the questions were too general, calling "in 
substance for an exposition of the Constitution relating to the 
powers of taxation." The situation is quite similar to that in 
In the matter of Senate Resolution on the Subject of Irrigation, 
9 Colorado, 620, except that there is no mention of pending 
cases. 

215 In re Bill, etc., 23 Colo. 504; In re HB. No. 495, 26 Colo. 182; and 
In re SR. No. 7, 29 Colo. 350. 

216 In re Bill, etc., 23 Colo. 504. 

217 In re SB. No. 416, 45 Colo. 394; cf. In re Senate Resolution, etc., 9 
Colo. 630, and In re Consolidation of School Districts, 23 Colo. 499. 

218 In addition to the 1887 cases cited in note 210 supra, cf . In the matter 
of House Resolution, etc., 12 Colo. 186; In re Senate Resolution, etc., 12 
Colo. 187; In re HR. No. 25, 15 Colo. 602; In re Emergency Clause, 18 
Colo. 291; In re Consolidation of School Districts, 23 Colo. 499; and In re 
SR. No. 10, etc., 33 Colo. 307. 

219 In re Opin. of the Justices, 217 Mass. 607. The recent refusal of 
In re Opin. of the Justices, 115 N. E. 921 (Mass.), was based in part upon 
the rule we are now considering. 



INTERPRETATION OF ADVISORY OPINION CLAUSES 213 

(c) Opinions mill not be given after the adjournment of the 
interrogating legislature or the end of the term of the interrogating 
executive. (?) There is practically just one authority for this 
proposition — an executive reference in New Hampshire.^^*^ 
It was asserted for the legislature in Opinions of the Justices, 
95 Maine, S(A-^^ but there was a cogent dissenting opinion 
in that instance, the justices pointing out that this was a novel 
doctrine, that it was often necessary and practical for legisla- 
tures to obtain opinions beforehand so as to avoid errors,^^ 
and that many opinions had been returned after an adjourn- 
ment.^ The majority doctrine may perhaps be regarded as 
superseded by In re Opinion of the Justices, 103 Maine, 506. 

There are, then, only sbc cases (three in Massachusetts 
and three in New Hampshire) where it is clear that a refusal 
was based upon the tests we are considering. Apart from the 
scores of cases where advice would have been replaced by non- 
compliance had the tests been applied, there are also instances 
where the justices have openly objected to the tests, though it 
be only in minor opinions. In In re Interrogatories of the 
Senate, 54 Colorado, 166, Hill, J., and Scott, J., insisted that 
the reference was well within the constitution, although no 
pending bill was involved. And in Opinions of the Justices, 
95 Maine, 564, the three dissenting justices argued very forcibly 
against the whole doctrine that an opinion may be refused 

"0 Opin. of the Justices, 70 N. H. 640. 

^1 In In re State Taxation, 97 Me. 595, the same justices distinguished 
between the recess separating the sessions of a legislature and the interim 
between two legislatures. 

^ Even in regular cases the New York judges have given decisions 
that could not affect the particular case, "to prevent embarrassment in the 
future. "—Matter of Madden, 148 N. Y. 136; and Matter of Fairchild, 151 
X. H. 359. But they wiU not do so unless the question is of general interest 
and importance. — Matter of Norton, 158 N. Y. 130. 

2^ See Ust given there; also Opin.s of the Justices, etc., 68 Me. 589; 
Veto Power, 9 Colo. 642; and In the matter ot the Constitutionahty of SB. 
No. 65, 12 Colo. 466. 



214 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

unless the interrogator *'has occasion to consider and act upon 
the questions submitted," as well as against the right of the 
justices to pass finally upon the solemnity of an occasion. As 
to the first point at any rate, the contrary argument of Savage, 
J., was rejected in In re Opinion of the Justices, 103 Maine, 506. 
So that, even if we admit the discretion claimed by some jus- 
tices, it is decidedly doubtful whether the single rule they have 
evolved in the exercise of that discretion can be supported. 

We do not mean for a moment to suggest that questions 
having no relation whatever to legislative or executive powers 
and duties are reasonably within the scope of the clause. There 
is no reason, however, why they should necessarily relate only 
to powers and duties of which the immediate exercise is con- 
templated. Legal advice may be indispensable in the formula- 
tion of a plan that may not call for final action for some time, if 
unnecessary labors and errors are to be avoided. Information 
as to the state of the law on a particular point may conceivably 
be of use to the legislators at any time, for they "may be called 
on ... to change the law. "^^^ Nevertheless, it is perfectly true 
that, in general, questions should be connected with matters 
where action is at least in the contemplation of the questioner. 
It would be in violation both of common sense and of good 
governmental policy to make the justices a consulting board on 
any and all abstract questions of an encyclopedic nature. 
Still the enforcement of this obvious restriction should be in 
the hands, not of the justices, but of the people. The execu- 
tive and legislative departments will not often exceed the 
bounds of reason, and, as many cases testify, wiU usually yield 
gracefully to representations from the judiciary that the refer- 
ence is not expedient, and withdraw the questions. But if 
they do prove unreasonable and intractable, the remedy is not 
to place advisory opinions at the mercy of the advisers, but to 
change the personnel of the other departments or introduce 
definite and plain restrictions into the constitutional clause. 

^ McNaghten's Case, 10 CI. and Fin., 200. 



INTERPRETATION OF ADVISORY OPINION CLAUSES 215 

8. Opinions may he refused if the reference does not indicate with 
sufficient definiteness the particular points upon which infor- 
mation is desired. 

The justification for this is not to be found in constitutional 
interpretation. It is a purely practical matter. The physical 
abilities of human beings are obviously limited. One man can 
do so much and no more. It would be impossible for judges 
to give a proper attention to their regular judicial duties and 
at the same time indulge in the general discussion of abstract 
or hypothetical questions from an academic standpoint. Then, 
too, questions may be logically unanswerable because of vague- 
ness. If information is desired in connection with a pending 
bill, it would seem the part of good sense, and is indeed the 
common practice, to enclose a copy of the bUl. 

The judges have shown a very patient consideration in 
this matter. There are only six cases where a refusal has been 
blamed, even in part, on the general or indefinite nature of the 
questions, and the excuse is quite admissible in every instance.^^^ 
Thus in Opinion of the Justices, etc., 145 Massachusetts, 587, 
the governor and council asked whether a set of rules submitted 
for their approval by the civil service commissioners would be 
valid, and the justices replied: "We have doubts whether, 
within the fair intent of the constitution, the executive or 
legislative departments can submit to the justices a law or a 
series of laws or rules more or less complicated and ask them to 
examine and ascertain what questions can be raised as to the 
validity of every clause, and to express an opinion in advance 
upon every such question." Again, in 1912,--^ the council 
referred this question: "When the law calls for action 'by the 
Governor and Council,' is the Governor to concur with a 
majority of the Council in order to make its decisions effective, 
or is he to be considered a member of the deciding body with 

"6 Cf. also Attorney-General for Ontario v. Hamilton Street Ry. Co., 
at al., (1903) A. C. 524. 

"^ In re Opin. of the Justices, 211 Mass. 630. 



216 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

one vote?" An opinion was not given because ''it is impos- 
sible to determine from your question whether the pending 
matter is of such a character that we ought to answer." Two 
years later the legislature was refused a general "exposition of 
the Constitution relating to the powers of taxation," because 
"an academic discussion of constitutional principles upon a 
subject so fundamental as that of taxation cannot be re- 
quired. "2^^ A fourth refusal may be found in a Missouri case^^ 
in which the legislature submitted "general, vague and unde- 
fined" questions concerning legislative powers over corpora- 
tions. The other two refusals were in Colorado and were 
occasioned by general questions as to whether certain bills 
were constitutional.^^^ 

It is clear from the precedents that if the justices are in- 
clined to deal generously with abstract or indefinite inquiries, 
they may follow one of three plans. They may render an 
opinion drawn up in general terms, leaving it to the questioner 
to make the application to the particular case^° or they may 
request that copies of the pending biUs involved be sent to 
them,23i or that the exact points upon which advice is desired, 
be indicated in a supplementary communication .^^ Finally 
they may draw their own conclusions as to the particulars in 
which the interrogator is interested and submit an opinion 

22'' In re Opin. of the Justices, 217 Mass. 607. 

228 Advisory Constitutional Opin., etc., 37 Mo. 135. 

229 In re HB. No. 107, 21 Colo. 32; and In re SR. No. 7, etc., 29 Colo. 
350 (another excuse was also given in this case). 

230 Opin. of the Justices, 53 N. H. 634; In re Opin. of the Justices, 73 
N. H. 618; In re Opin. of the Justices, 77 N. H. 611; In re SB. Providing for 
a Board of Public Works, etc., 12 Colo. 188; In re University Fund, 18 
Colo. 398; In re Internal Improvements, 18 Colo. 317; and In re Bill, etc., 
23 Colo. 504; cf. In re Ontario Medical Act, 13 Ont. L. R. 501. 

231 Opin. of the Justices, 126 Mass. 557; and In the matter of the Con- 
stitutionaHty of HB. No. 18, etc., 9 Colo. 623. 

232 In the matter of the Constitutionality of HB. No. 18, etc., 9 Colo. 
623; In re HB. No. 165, 15 Colo. 593, 595; In re Loan of School Fund, 18 
Colo. 195; and In re a Bill, etc., 21 Colo. 29. 



INTERPRETATION OF ADVISORY OPINION CLAUSES 217 

thereupon,^^ or limit their counsel to points suggested in an 
argument by amici curiae.^^ 

9. Questions of fact will not be investigated in advisory opinions. 
There is no foundation for the assertion of Story, J.,^^ that 
in advisory opinions " questions of fact and of law may be decided 
without argument and without a jury. " As a matter of fact, in 
Massachusetts, as in every other State where the constitution 
authorized advisory opinions (except Colorado), questions 
referred are specifically limited to questions of law. The jus- 
tices have called attention to this more than once,^^ and have 
refused plainly to pass upon questions of fact.^^ Even in 
Colorado, where the constitution says "important questions," 
it was stated as early as 1889,^^ that "for obvious reasons we 
hold that the intent could not have been to authorize questions 
of fact;" and this has been followed in later cases, at least one 
partial refusal being based upon it.^^^ Not infrequently, "as 
on a case stated" the justices have rendered opinions upon 
the questions of law involved in a set of facts as presented in 
the inquiry ,^^° but always it has been perfectly clear that a 

233 Opin. of the Justices, 9 Cush. 604; In re Opin. of the Justices, 190 
Mass. 611; Opin. of the Justices, etc., 25 N. H. 537; In the matter of the 
Constitutionahty of HB. No. 270 and SBB. No. 69 and No. 106, etc., 9 
Colo. 635; In re Kindergarten Schools, 18 Colo. 234; and In re HB. No. 203, 
21 Colo. 27. 

234 Opin. of the Justices, etc., 45 N. H. 593; In re Constitutionahty of 
SB. No. 69, 15 Colo. 601; and In re Canal Certificates, 19 Colo. 63. 

235 Deb. Mass. Conv. 1820, p. 489. 

236 See Opin. of the Justices, 126 Mass. 557; and Dinan v. S\\-ig, 223 
Mass. 516. 

237 Opin. of the Justices, 120 Mass. 600; and Opin.s of the Justices, 
etc., 18 Me. 458. 

238 In the matter of the Constitutionahty of SB. No. 65, 12 Colo. 466. 

239 In re Appropriations by General Assembly, 13 Colo. 316. 
2''0Opm. of the Justices, 5 Mete. 596; Opin., 45 N. H. 607; Opin. of 

Justices, 70 N. H. 638; In re Opin. of the Justices, 76 N. H. 601; Opin. of 
the Justices, 33 Me. 587; In the matter of the Executive Communication, 
etc., 12 Fla. 686; In re Fire and Excise Commissioners, 19 Colo. 482; In re 
Casual Deficiency, 21 Colo. 403; and In re HB. No. 250, 26 Colo. 234. 



218 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

party interested was quite free to prove a different state of 
facts in any later proceeding.^^ Even apart from the con- 
stitution, it would appear that this is a necessary limitation. 
The justices have not the facilities, in such consultations, for 
an examination of the facts; they lack the usual machinery of a 
court, especially the jury which is so important an element in 
the Anglo-American theory of judicial ascertainment of facts. 

10. Judicial notice may he taken of facts not stated in the inter- 
rogatory. 

This rule has been apphed sometimes when extrinsic facts 
would throw light upon the cause for an inquiry and so tend 
to discover the particular points upon which advice was needed 
(see rule 8, supra). For instance in Opinion of the Justices, 
9 Gushing, 604, the justices were guided by the recent report 
of the bank commissioners in concluding that the senate was 
chiefly interested in only one special corporation duty. Again, 
when the possibility of legislative action did not appear in the 
reference, the justices have taken judicial notice of the introduc- 
tion of a bill upon the subject of the inquiry.^ In Opinion of 
the Justices, 56 New Hampshire, 574, where the house of repre- 
sentatives asked if the governor had power to summon certain 
candidates in a contested election, the justices took judicial 
notice of the fact that two had already been summoned and 
sworn in as senators and so refused an opinion upon the com- 
pleted act of the third department of government. In con- 
sidering a proposed bill which apphed to cities of over 100,000 
population, a Colorado court took notice of the fact that Denver 
was the only city of the State that would probably come within 
the act for many years.^ An answer has been refused partly 

241 See especially People v. Martin, and People v. Orr, 19 Colo. 565: 
"The court may give its opinion upon the law based upon the facts sub- 
mitted by the executive, but it cannot render judgment thereon, nor can 
it, upon such questions, undertake to determine questions of fact." 

242 In re Opin. of the Justices, 190 Mass. 611. 

2«In re ConstitutionaHty of SB. No. 293, 21 Colo. 38. 



INTERPRETATION OF ADVISORY OPINION CLAUSES 219 

for the reason that the justices judicially knew that the session 
of the legislature would expire in three days, which did not 
allow enough time for a satisfactory hearing and argument.^ 
Other cases might be cited,^^ but perhaps these will sufficiently 
indicate the operation of the rule. 

11. If an opinion is requested within a limited time the justices 
will endeavor to comply with the request, hut an opinion may 
he refused if the time availahle will not permit a reasonahle 
consideration of the question. 

The justices have frequently complained that advisory 
opinions were often requested under such circumstances that, 
if they were to be of any use to the interrogator, there was too 
little time for investigation, the hearing of arguments, or con- 
sultation among themselves.^^ Sometimes they have stated 
that the opinion returned was only such as the time at their 
disposal permitted.2^^ The reference does not contain a definite 

244 In re SB. No. 416, 45 Colo. 394. 

2^ For example see In re Relief Bills, 21 Colo. 62; and In re Casual 
Deficiency, 21 Colo. 403. 

246 Questions presented for advisory opinions "are perhaps almost 
necessarily presented imder circumstances indicating that an opinion is 
expected speedily. And they are received, when the mind, having been 
greatly exhausted by the pressing labors of other official duties, no longer 
possesses its natural vigor, and cannot exercise even its accustomed extent 
of thought or power of reason. And it cannot be allowed the time for that 
extensive research and patient examination and reflection, which the im- 
portance of the questions, often a little aside from the range of its accus- 
tomed studies and duties, may demand." — Opin. of the Justices, 16 ]Me. 
479. Cf. the complaint of ex-Justice Morton in Deb. Mass. Conv. 1853, 
II, p. 694, and of the Colorado court in In the matter of the Constitution- 
ality of SB. No. 65, 12 Colo. 466. 

'" In re Opin. of Justices, 209 Mass. 607; Opin. of the Justices, etc., 45 
N. H. 593; In re Opin. of the Justices, 73 N. H. 618; In re 0pm. of the Jus- 
tices, 76 N. H. 597; Opm. of the Justices, 2 Me. 439; In re the Constitutional 
Convention, 14 R. I. 649; In re State Warrants, 6 S. D. 518; In re House 
Roll 284, 31 Nebr. 505; Deb. Mass. Conv. 1853, I, p. 138 (N. Y. case); and 
Opin. of the Judges, etc., 37 Vt. 665. 



220 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

time-limit^^ or even a request for an early or speedy answer^* 
in many cases, but it is often apparent to the justices from the 
circumstances of the case (if they are ''judicially known" to 
them) that an opinion should be rendered at an early date if 
at all.^^^ In such exigencies, a categorical answer has some- 
times been returned promptly, and the reasons set forth at 
length in a subsequent communication.^^ In a very few in- 
stances an opinion has been refused partly, at least, because of 
insufficient time.^^^ 

It is evident that the time required for a fairly adequate 
consideration will vary with the nature of the questions referred. 
In some instances the Colorado justices have returned opinions 
upon legislative questions on the day following their submission. 
At other times they have taken as long as thirty days. The 
average for forty-nine references is eight and. three- tenths days. 
In Massachusetts, the average for forty-five legislative references 
is fifteen and eight-tenths days, and for twenty-five executive 
references, eighteen and seven- tenths days. The lower average 
in Colorado may be due to the limitation of legislative sessions 
to ninety days, or to a less scrupulous consideration of questions 
referred. Until recently the opinions in Colorado were as a 
rule very brief and contained few reasons, while the Massa- 
chusetts justices have usually outlined the argument for their 
opinions as for regular cases. Because legislative inquiries 

2** Opin, of the Justices, 126 Mass. 547; and Opin. of the Justices, etc., 
25 N. H. 537. 

249 Opin. of the Justices, etc., 41 N. H. 553; In re Opin. of the Justices, 
66 N. H. 629; In re Opin. of the Justices, 76 N. H. 597; In re the Constitu- 
tional Convention, 14 R. I. 649; and In re Casual Deficiency, 21 Colo. 403. 

250 Opin. of the Justices, etc., 45 N. H. 595; In re SB. No. 416, 45 Colo. 
394; In re State Warrants, 6 S. D. 518; In re Quaere, etc., 31 Nebr. 262; 
and Deb. Mass. Conv. 1853, I, p. 138 (N. Y. case). 

25^ Opin. of the Justices, etc., 45 N. H. 595; In re Opin. of the Justices, 
66 N. H. 629; and In re Quaere, etc., 31 Nebr. 262. 

252 Opin. of the Court, 58 N. H. 623; In the matter of Senate Resolution 
on the subject of Irrigation, 9 Colo. 620; In re Bill, etc., 23 Colo. 504; In re 
HB. No. 99, etc., 26 Colo. 140; and In re SB. No. 416, 45 Colo. 394. 



INTERPRETATION OF ADVISORY OPINION CLAUSES 221 

generally relate to pending bills, it is to be expected that the 
justices would tend to hurry their answers a little more than for 
executive inquiries, and this seems to be true in Massachusetts 
at least. 

12. In rendering advisory opinions, the justices should act indi- 
vidually and not as a court. 

There can be no question that this is true in every State 
except possibly Colorado. It has been expressly stated by 
the justices themselves in Massachusetts,^^ New Hampshire,^ 
and Missouri,^^^ that "in giving such opinions, the justices do 
not act as a court, but as the constitutional advisers of the other 
departments of the government." This assertion was not 
based upon the words of the constitution, but upon the evident 
nature and purpose of the device. In the Massachusetts 
opinion, it follows a very painstaking historical review of the 
advisory opinion in England. Additional support for the rule 
may be found in the scores of instances where individual opinions 
have been given, both in concurrence and dissent.^^ 

Only in Colorado has there been an attempt to set up the 
contrary rule. As usual, the source of disagreement is In the 
matter of the Constitutionahty of SB. No. 65, 12 Colorado, 466. 
In that case, Helm, C. J., emphasized the fact that the constitu- 
tion imposed the advisory duty upon the court and not the 
justices, and made this an argument for the binding force of 
advisory opinions in Colorado (see next rule). It is submitted 
that the learned chief justice gave too great weight to the exact 
words of the constitution and too little regard to the history 
and intent of advisory opinions.^^ A member of the judiciary 
committee that proposed the amendment of 1886 in the senate^^ 

253 Opin. of the Justices, 126 Mass. 557. 

254 Opin. of the Court, 60 N. H. 585. 

255 Opin. of Supreme Court Judges, etc., 55 jSIo. 295. 
25e See pp. 149-151 supra. 

25^ See Thayer in The Nation, Vol. 49, p. 476. 
258 O. F. A. Greene in The Nation, Vol. 50, p. 50. 



222 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

tells US that the provision as worded was ''injected into the bill 
by a hasty amendment in committee of the whole," that the 
legislative mind had no such intent as was attributed to it 
by the chief justice, and that "in legislative parlance, when 
any power is to be conferred upon the court as a whole, or upon 
any of its members as judges, it is customary to use the term 
'the Supreme Court.' " As a matter of course, the assignment 
of duties to the justices of the supreme court as individuals is 
very rare, and it is quite natural that the legislative habit 
of referring to them collectively as the "supreme court" should 
have influenced the wording of a hastily framed clause. Again, 
if the apphcation of the device were to be guided strictly by 
the words of the constitution, it is not perceived why emphasis 
should not be placed upon the word "opinion" as contradis- 
tinguished to "decision," or why questions of fact as well as 
questions of law should not be within the scope of the clause. 
Although advisory opinions in Colorado have, as a rule, 
been given "Per Curiam, "^^ this doctrine of 1889 has been 
reasserted only once,^^^ and that by a chief justice who had been 
one of the justices in the earher case. In fact, individual 
replies have been made in Colorado,^^^ though it still seems to 
be accepted that an opinion upon the question referred should 
not be given unless the majority think the reference is within 
the clause.2^2 Except in such cases, the question is of little 
importance, unless the giving of opinions by the court be used 
as an argument for their force as judicial precedents, and we 
hope to show that this latter theory is of doubtful vaUdity, 
even in Colorado. 

269 See pp. 147-148 supra. 

260 In re Priority of Legislative Appropriations, 19 Colo. 58. 

2fi In re SB. Providing for a Board of Public Works, etc., 12 Colo. 188; 
In re HR. No. 10, 50 Colo. 71; and In re Interrogatories of the Senate, 54 
Colo. 166. 

262 In re Interrogatories of the Senate, 54 Colo. 166. 



INTERPRETATION OF ADVISORY OPINION CLAUSES 223 

13. Advisory opinions have no binding force as precedents, except 
possibly in determining later extra-judicial practice. 
Viewed in the light of historical origin and development, the 
advisory opinion, as we now call it, must unquestionably be 
understood as subject to the limitation expressed in this rule. 
It is the modern form of the advice given to the EngHsh king 
and House of Lords by the king's councillors. The words 
used to describe the practice are sufficiently indicative of its 
juridical character. The judges are called on to counsel and 
advise ;^^^ opinions, not judgments, are required.^^ These 
opinions had no compelUng force with the king or lords, 
and before the end of the eighteenth century, the judges had 
made it clear that they would not be bound by them in later 
cases, but reserved the right to change their opinion "in case 
they should see cause for it."^^^ 

The early practice in the United States fully accorded 
with this view, and in some States there has been no tergiversa- 
tion at all. In Massachusetts the rule was first announced 
in Adams v. Bucklin,^^^ a regular case in which the court re- 
ferred to an earlier opinion,-^'^ saying: ''We do not however 
consider that opinion binding upon us in this action; but after 
carefully revising it, we are satisfied of its correctness, and 
with the reasons given in support of it." In 1844, they gave 
a real ex parte opinion reluctantly, with the understanding 
that such an opinion could not be considered "as having the 
force of a judgment, binding on the rights of parties" but 
"must be taken as an opinion upon the precise question pro- 
ves Northumberland's Case, Rot. Pari. 5 Henry IV, Nos. 11 and 12; 
Duke of York's Case, Rot. Pari. 39 Henry VI, No. 12; and 3-4 Wm. IV, c. 
41, s. 4. 

264 Commission Case, Fortescue 392; Peacham's Case, Bacon's Works, 
IV, pp. 593, 596, 601; Paty's Case, 14 East, 92 n.; Whiston's Case, Burnet's 
Own Times, p. 867. 

265 See pp. 14-16, 23, supra. 

266 7 Pick. 125. 

2" Opin. of the Justices, 7 Pick. 130 n. 



224 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

posed, which cannot affect the rights of parties, should they 
hereafter be brought before the court in a regular course of 
judicial proceeding. "^^^ An opinion was cited by the attorney- 
general as an authority, in Green v. Commonwealth,^^^ but 
the court observed that "an opinion formed and expressed 
under such circumstances cannot be considered in any sense 
as conclusive or binding on the rights of parties, but is regarded 
as being open to reconsideration and revision." The same 
rule has been reiterated again and again by the Massachusetts 
justices,2^° a,nd has never been questioned in that State. This 
is true also of New Hampshire,^^^ Rhode Island,^^^ Florida,^^^ 
and of a number of States where advisory opinions are extra- 
constitutional.2^* On principle, the rule should apply also to 
opinions required under a statute, and this view has been taken 
in Oklahoma^^^ and in Canada.^^^ It will be remembered that 
in some of the provinces since 1890 and in the Dominion since 

268 Opin. of the Justices, 5 Mete. 596. 
269 12 Allen, 155. 

270 Opin. of the Justices, 122 Mass. 600; Functions of Judiciary, 148 
Mass. 623; In re Opin. of the Justices, 190 Mass. 611; In re Opin. of the 
Justices, 214 Mass. 599; In re Opin. of the Justices, 214 Mass. 602; Young v. 
Duncan, 218 Mass. 346; and Woods v. Wobum, 220 Mass. 416. 

271 Opin. of the Justices, etc., 25 N. H. 537; Opin. of Justices, 70 N. H. 
638; and In re Opin. of the Justices, 76 N. H. 597. 

272 Taylor v. Place, 4 R. I. 324. 

273 In the matter of the Executive Communication, etc., 12 Fla. 686; 
In the matter of the Executive Communication, etc., 14 Fla. 289; and In 
re Opin.s of the Justices, 69 Fla. 632. 

274 Reply of the Judges, etc., 33 Conn. 586; In re RaUroad Commis- 
sioners, 15 Nebr. 679; and Report of the Judges, etc., 3 Binney, 595. 

275 State V. Johnson, 21 Okla. 40; Opin. of the Judges, 3 Okla. Cr. 315; 
In re Opin. of the Judges, 6 Okla. Cr. 18; and In re Opin. of Judges, 6 Okla. 
Cr. 210. 

276 In re Certain Statutes, etc., 22 Can. S. C. R. 577; Attorney-General 
for Ontario v. Attorney-General for Dominion, et al., (1896) A. C. 348; 
In the matter of Jurisdiction over Provincial Fisheries, 26 Can. S. C. R. 444; 
and In the matter of the Representation of Prince Edward Island, etc., 33 
Can. S. C. R. 594. 



INTERPRETATION OF ADVISORY OPINION CLAUSES 225 

1891, the advisory character of the opinions is clearly indicated 
in the statutes; so the later protestations of the judges were 
unnecessary .2^^ The case is a Uttle more difficult when the 
statute attempts to give the opinions more than advisory force. 
It seems to be true in Canada that even if the statute says an 
opinion "shall be deemed a judgment of the Court," the judges 
may hmit that effect to special purposes and hold that the 
opinion is for information alone.^^^ Certainly the supreme 
court of Canada will not entertain an appeal from such a "judg- 
ment. "^^^ On the other hand, when the purpose of the statute 
is to secure a judicial declaration as to the constitutional pas- 
sage of an act under suspicion, perhaps the judges will act 
upon a direction to nullify such law.^^^ 

It remains to consider the anomalous doctrine of a few 
cases in Maine and Colorado. The early Maine practice seems 
to have been sound. In State v. Cleveland, 58 Maine, 564, 
Kent, J., says: "It is true, unquestionably, that the opinions 
given under a requisition like this have no judicial force, and 
cannot bind or control the action of any officer of any depart- 
ment. They have never been regarded as binding upon the 
body asking for them." He finally persuades himself to give 
an opinion only because it "cannot have any authoritative 
force in any possible future proceedings in the case. " Tapley, 
J., takes the same position in Opinion of the Justices, 58 Maine, 
590. The opposite theory is a product of the awkward political 
predicament of 1879. Governor Garcelon asked advice as to 
a series of election details,^^^ but apparently finished canvassing 
the votes before the answer reached him.^^- The names of 

"7 In re Criminal Code, 43 Can. S. C. R. 434; In re References, etc., 
43 Can. S. C, R. 536; and cf. Attorney-General for Ontario v. Attorney- 
General for Canada, (1912) A. C. 571. 

2^8 In re Ontario Medical Act, 13 Ont. L. R. 501. 

279 Union Colliery Co., etc., v. Attorney-General of British Columbia, 
et al., 27 Can. S. C. R. 637. 

280 In re an Act, etc., 83 N. J. L. 303. 

281 Questions Submitted, etc., 70 Me. 560. 

282 See Statement and Questions Submitted, etc., 70 Me. 600. 



226 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

many candidates for the legislature were rejected because of 
alleged defects in the returns (not recognized as defects in 
the opinion of the justices). Rival legislatures were organized, 
one of which (composed partly of the rejected candidates) 
asked the justices whet.her the governor and council had a 
right to summon, as elected, persons "who by the official re- 
turns under the decision of the court (do) not appear to be 
elected. "^^ This phraseology was of course dictated by a 
misapprehension of the character of the opinion previously 
rendered, for the court had given no decision and could not have 
done so in the premises. But the justices were seduced by 
the fallacy. ''The opinion of the court was thus obtained," 
they said, "in one of the modes provided in the constitution 
for an authoritative determination of 'important questions 
of law.' The law thus determined is the. conclusive guide of 
the governor and council in the performance of their ministerial 
duties. Any action on their part in determining the vote as 
it appears by the returns in violation of the provisions of the 
constitution and law thus declared is an usurpation of authority, 
and must be held void. " The radical doctrine thus enunciated 
was supported by no argument and no citation of authorities. 
It was the fiat of the justices. It proceeds upon false hypotheses 
and leads to incorrect results. The opinion given to the gover- 
nor was not the opinion of the "court" but of the justices. 
The word "authoritative" as used is a specious petitio principii. 
Clearly the assumption of their power to control the governor 
and council in the exercise of duties entrusted exclusively to 
them by the constitution was the real usurpation. In other 
respects the opinion bears evidence of being carelessly drafted. 
It could not have been very carefully considered for a list of 
twenty-five somewhat compHcated questions was answered in 
four days. Also quite likely the attitude of the justices was 
influenced by the popular excitement that prevailed.^^^ 

283 Statement and Questions Submitted, etc., 70 Me. 570. 

284 It would be interesting to know whether the political complexion 
of the court was the same as that of the rejected candidates. 



INTERPRETATION OF ADVISORY OPINION CLAUSES 227 

Thayer, writing in 1885,^^ says: "It may be confidently 
expected that the subject, in Maine, will not rest where it is 
thus left." This prophecy has, we think, been completely 
reaUzed. Even in 1881, two of the justices who had participated 
in the objectionable opinion admit that an opinion given to 
the council as to the governor's right to remove the supreme 
court reporter would bind neither the State nor the reporter, 
and would have no effect upon the court, "if the matter should 
be judicially brought before" it in a later case.^^^ By 1901, 
all the justices are agreed that an advisory opinion "has not 
the binding force of a judgment of court" and is not "within 
the principle of stare decisis. ''^'^^'^ Finally the matter was 
brought definitely before the court in two regular cases. A 
Maine opinion was cited in Sawyer v. Gilmore (1912),^^^ and 
the court not only pointed out that "the opinions of Justices 
given at the request of either Branch of the Legislature or of 
the Executive do not have the binding force of decisions in 
adjudicated cases," but actually modified the rule of the opinion 
cited. "We do not feel," they say, "that the conclusions 
reached in this decision after mature dehberation should be 
modified because of these expressions in the opinions of the 
Justices which are in the nature of dicta in an unadjudicated 
case" (at page 185). And again, in Laughlin v. City of Port- 
land (19 14), 2^^ the plaintiffs confidently rehed upon two ad- 
visory opinions from Massachusetts, and the court repHed that 
they did not "have the force of a decision." We may fairly 
conclude that the sporadic doctrine announced by the Maine 
justices in 1880 has been discredited in that State and that 
the present day practice is in harmony with the rule as stated 
above. 

285 Leg. Essays, p. 56. 

286Libbey and Walton, JJ., in Question Submitted, etc., 72 Me. 542. 
287 Opin.s of the Justices, 95 Me. 564; cf. opinion of Savage, J., in In re 
Opin, of the Justices, 103 Me. 506. 
288 109 Me. 169. 
289 111 Me. 486. 



228 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

The erroneous belief in the conclusiveness of extra-judicial 
opinions has been more persistent in Colorado, though it has 
rested entirely upon obiter dicta. It saw the light first in the 
compendious exposition of 1889 to which we have so often re- 
ferred.2^*^ Starting with the questionable proposition (see 
rule 12 supra) that opinions are to be given by the court and 
not the justices, and observing also that responses are to be 
reported "as are other opinions," Helm, C. J., abruptly comes 
to the conclusion that ''they have all the force and effect of 
judicial precedents." We have already presented our ob- 
jections to the premise stated. His second observation is 
misleading. The giving of advisory opinions in writing is 
characteristic of the American practice throughout, and is 
desirable as a matter of convenience.^^^ Then the constitution 
does not say advisory opinions are to be. reported "as are 
other opinions;" it says they "shall be pubUshed in connection 
with the reported decisions of said court." A distinction 
seems to be made between "opinions" and "decisions." If 
the intention was to place both on the same plane, as the chief 
justice infers, why did not the legislature say "in connection 
with the other decisions of said court?" Again we have the 
evidence of Mr. O.F.A. Greene, whose relation to the amendment 
entitles him to a careful hearing, that the legislature had no 
such intention,^^^ and that the reporting of opinions was "sole- 
ly for convenience of reference. "^^^ 

290 111 the matter of the Constitutionality of SB. No. 65, 12 Colo. 466. 

291 See pp. 42-44, 146-147 supra. 

292 "The position of Judge Helm in drawing inferences in his opinion 
upon historic grounds and slight verbal changes against stare decisis is 
untenable. The judge by his construction gives to the provision ... a 
meaning that the Legislature framing it did not contemplate — that is to 
say, the legislative mind had neither a negative nor an affirmative purpose 
in regard to the value of such opinions as general judicial precedents. . . . 
The very hostihty of the Legislature to the court at that time precluded 
any intention of enlarging such power beyond the necessity of the expedient. " 
Letter in The Nation, Vol. 50, p. 50. 

293 Ibid. 



INTERPRETATION OF ADVISORY OPINION CLAUSES 229 

But the court could not face the logical consequences of its 
own pronouncement. It fell to the lot of a member of the 
1889 court, when he became chief justice, to reject the rule 
of his predecessor in unmistakable terms. In 1893, he toned 
it down sHghtly^^* and the following year was compelled to 
abandon it altogether. An opinion had been given to the 
governor assuring him that, on the facts stated in his inter- 
rogatory, he had rightly removed the fire and excise commis- 
sioners of Denver, but advising him that he should not use 
force to effect their removal, but resort to judicial proceed- 
jj^gg 295 xhen when quo warranto was brought, the court 
stated plainly that the opinion given to the governor was not 
binding upon them and might require modification upon ar- 
gument in a litigated case.^^^ The same court reasserted 
these principles in People v. McClees,^^^ and a slightly differ- 
ent court in People ex rel. v. Le Fevre gave particular attention 

294 '<By our constitution questions are to be propounded to, and answers 
returned by, the court, instead of the justices, as elsewhere, and published 
in connection with otter decisions, thus giving such answers to some extent 
the force and effect of judicial precedents. " — ^per Hayt, C. J., in In re Priority 
of Legislative Appropriations, 19 Colo. 58. 

295 In re Fire and Excise Commissioners, 19 Colo. 482. 

296 "But it could not be assumed that such ex parte statement could not 
be controverted, nor that an opinion based thereon might not require modi- 
fication when the other side should present their cause in court as they had a 
right to do. It would have been highly improper to give an unquahfied 
opinion upon such ex parte statement. No opinion based upon such state- 
ment could have been made to bind the parties contending for official place 
upon the fire and police board. \\Tiile the constitution requires this court 
to 'give its opinion upon important questions upon solemn occasions when 
required by the governor,' it does not require, nor does the constitution 
permit, this court to render judgment in connection with such opinion. 
The court may give its opinion upon the law based upon the facts sub- 
mitted by the executive, but it cannot render judgment thereon, nor can 
it, upon such questions, imdertake to determine questions of fact." — People 
v. Martin and People v. Orr, 19 Colo. 565. 

2" "In no doubtful case where large interests are involved will an ex 
parte opinion be accepted as decisive. This is well illustrated in respect 



230 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

to the arguments in a case that would have been governed by 
an earher advisory opinion if binding, in order that a precedent 
might be "estabhshed in a case where unquestionably both 
sides appear. "298 jn this latter instance, great weight was 
given to the earUer opinion because it had been "the unques- 
tioned law of this State for more than seven years," but even 
so the relators were not "estopped to question the soundness 
of this decision (?), if it is wrong." This careless use of 
the word " decision" may be found in even later cases.^^^ There 
is a worse backsliding in 1900. On a prosecution under the 
eight hour law of 1899, the court called attention to its un- 
favorable opinions upon the law when pending and said: "But 
wholly disregarding these decisions, binding aUke on all de- 
partments of government, it proceeded to enact the measure 
now before us."^*^^ Still the case is not an authority for the 
binding effect of opinions on anybody, for the court proceeds 
to test the act all over again before making a decision.^^^ Fi- 

to the very matters now sought to be brought before this court for recon- 
sideration. See In re Election of District Judges, 11 Colo. 373, where these 
same matters were considered and an opinion given in response to a question 
from the governor. That opinion, however, was given before the calhng 
of the election, so that no individual claims to oflSce had arisen. It is mani- 
fest that such opinion is not now accepted as conclusive, because not de- 
livered in an actually litigated case. We refer to this as fortifying the view 
that the present controversy must be heard and determined, if at all, in 
some proceeding where the jurisdiction of the court is undoubted. When 
it is heard and determined in a proceeding where the court has jurisdiction, 
not only to express its opinion, but to render and enforce its judgment, the 
decision will have more weight." — People v. McClees, 20 Colo. 403. 

298 21 Colo. 218. 

299 E. g.. Parks v. Soldiers' and Sailors' Home, 22 Colo. 86; and In re 
Application of Morgan, etc., 26 Colo. 415. 

3"'' In re Application of Morgan, etc., 26 Colo. 415. 

301 "Following the rule of stare decisis, we might content ourselves with 
a mere affirmance of our previous announcements, made, as they were, 
upon full consideration; but in view of the importance of the questions 
involved we have thought it best fully to discuss the principles by which 
this act must be tested." — ihid. 



INTERPRETATION OF ADVISORY OPINION CLAUSES 231 

nally in a 1913 case ^°^ it was correctly stated by Scott, J., 
(albeit obiter) that the answer requested was only advisory 
and "may be reviewed or changed upon a more formal and 
complete investigation. " 

Collating the above opinions, it must be admitted that 
it is difficult to determine the prevaiHng rule in Colorado. The 
statements quoted are, it is conceived, irreconcilable. How- 
ever, it is submitted that the weight of authority excludes the 
application of stare decisis to advisory opinions. It will be 
seen presently that there are quite a few cases where doctrines 
announced in advisory opinions have been followed; but this 
is quite consistent with the respect paid to advisory opinions 
in other States,^^^ where it has never been suggested that ad- 
visory opinions had binding force. More important for our 
purpose are those few cases in which the judges have unequi- 
vocally stated that they were not bound by opinions previous- 
ly given, but would reopen the question and review their con- 
clusions in a regular case at any time. There is no clear case 
to the contrary. But do the answers bind the interrogators? 
Here we are at an impasse. The legislature has disregarded 
the opinions of the justices; the justices have asserted their 
opinions are binding upon the legislature. This phase of the 
question is not of great practical importance, for the legis- 
lature and governor evidently can do what they will — judicial 
protest is a brutum fulmen. 

In passing a reference might be made to the practice in 
the two States not mentioned above. The only indication 
we have of the attitude of the Missouri justices is in a case of 
1868,^^^ where they accompany a refusal to give an ex parte 
opinion, with the observation that "the expression of opinions 
on such matters might be looked upon as prejudging the case, 
and would greatly embarrass the court in its subsequent ad- 

^°- In re Interrogatories of the Senate, 54 Colo. 166. 

303 See pp. 201-202 infra. 

304 In the matter of the N. Mo. R. R., 51 Mo. 586. 



232 DEPARTMENTAL C0(5pERATI0N IN STATE GOVERNMENT 

judications." As they answered similar questions in other 
cases, without worrying about the judicial effect of such answers, 
their dictum need not be taken very seriously. In South 
Dakota, the principle stated by Helm, C. J., in the Colorado 
opinion of 1889 found letter-perfect adherence in the justices of 
jg97.305 ]3u^ 2i later court met the attorney-general's suggestion 
that their opinion would settle a certain question with an 
unmistakable disclaimer. ''The answer would not amount 
to a decision of the Supreme Court of this State, but would 
merely be an advisory opinion of the judges not conclusive 
upon the rights of parties, and binding on no one. . . It is 
clear to us that the duty of the federal courts to follow the 
decision of a state court in matters pertaining to the construc- 
tion of a state Constitution does not comprehend advisory 
opinions of judges which do not have the force of judicial 
decisions. . . . The distinction between the binding effect 
of a decision of the Supreme Court of South Dakota and an 
advisory opinion of the judges is obvious. "^°® 

We think it has been shown that the precedents justify 
the rule as formulated above. Advisory opinions have not 
the force of judicial precedents, and the doctrine of stare decisis 
has no application to them if the same question is presented 
to the court in a case inter partes. When the prevailing prac- 
tice is essentially agreed upon the rule, the burden of proof 
is upon those who allege an exception. The matter has been 
in doubt in only three States. In Maine and South Dakota 
the dissention was a "hapax legomenon" which now stands 
corrected. In Colorado, the case is not so clear for the rule, 
but most of the opposition consists of dicta found in opinions, 
while the weight of regular decisions is in its favor. Every 
writer in the field of law who has dealt with the question has 
concluded that this is sound jurisprudence. In 1885 Thayer 
gave it considerable attention in a "Memorandum on the 

305 In re HR. No. 30, 10 S. D. 249. 

3o« In re Opin. of the Judges, 34 S. D. 650. 



INTERPRETATION OF ADVISORY OPINION CLAUSES 233 

Legal Effect of Opinions given by Judges," etc., and said 
"it seems clear that the opinions herein referred to are purely 
advisory. "^°^ The accepted practice of the last thirty years 
has been corroborative of that statement. 

This is as it should be on principle. The opinions are for 
the guidance of the other departments in difficult paths. They 
are advice or counsel, to aid in the solution of legislative and 
executive problems. Necessarily these problems sometimes 
involve questions of private right, but that does not mean that 
the advisory opinion scheme must be interpreted as a new and 
extraordinary way by which private rights may be adjudicated. 
The reasons usually given for the doctrine of stare decisis apply 
in very small degree to the advisory opinion, if its character 
once be clearly understood. The matter dealt with in an 
advisory opinion certainly is not res judicata. Facts are not 
investigated; all the parties concerned are probably not repre- 
sented before the court — they do not come before the court 
asking for anything, and the opinion of the court is not given 
to them but to a coordinate branch of the government. Would 
the justices who have called these opinions "decisions" or 
"adjudications" grant execution if the party favored by an 
opinion should ask for it? Surely not; yet this is the logical con- 
sequence of a decision. But, it is said, it is admitted that an 
advisory opinion is not a real decision, but it is "in the nature 
of a decision," it has the force and effect of a "judicial prece- 
dent. " If, by this first phrase, it is meant that advisory opin- 
ions are dehvered by judicial officers in a form similar to the 
decision rendered in a case, plainly it is not a reason why they 
should be binding. Possibly the first phrase is merely synony- 
mous with the second. Now what is the argument for the com- 
pelHng force of precedents? There is no need of giving space 

3" Thayer, Legal Essays, pp. 42-60; cf. also his essay on Constitutional 
Law, ibid., p. 34 (1893), and on "International Usages," ibid., p. 185 (1895); 
see, too, Dubuque in Am. L. Rev. XXIV, p. 369, at p. 374; also Harv. L. 
Rev. X, pp. 50-51, and Albany Law Journal LIX, p. 21. 



234 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

to a detailed review of it here. It is well known that it pre- 
supposes a decision by a court of competent jurisdiction in a 
case regularly presented and argued in the course of judicial 
proceedings. Because the parties to a particular action have 
been compelled to adjust their business relations according 
to certain rules by a court which has advisedly considered the 
law applicable to those relations, other persons are justified 
in assuming that in all probabihty the same rules would be 
imposed upon them in similar circumstances. Would they 
be justified in assuming, too, that rules announced to the legis- 
lative or executive departments of government by way of 
assistance would be imposed upon individual litigants in a 
judgment? This has been answered in the afi&rmative on the 
ground that private individuals may reasonably assume that 
the judicial mind will, under the same conditions, arrive at the 
same results. Here is the crux of the matter. The conclusion 
would be defensible, if the hypothesis were satisfied. But the 
conditions are not the same. In formulating advisory opinions, 
the judges are commonly unassisted by the argument of counsel, 
they are required to deal with an abstract question of law upon 
a given statement of facts, and they are often very Hmited as 
to time. Opinions given under such circumstances are not 
always carefully considered and should be accepted with cau- 
tion. This would be true of judgments as well. Some judges 
have made it a rule not to be bound by their own decisions 
upon points not argued before them, and have changed their 
opinion upon argument.^'^^ 

It comes to this, then, that advisory opinions are entitled 
to the reverence which their intrinsic qualities merit. This 
has been accorded them in every State where they exist, and 

308 Story, J., in Deb. Mass. Conv. 1820, p. 490. Cf. "It might almost 
be suggested as a wise rule to apply to the use of judicial decisions as pre- 
cedents, that no case should be held to acquire binding force as law unless 
the point on which it was decided had been argued by counsel." — Bouvier, 
s. V. Precedents. 



INTERPRETATION OF ADVISORY OPINION CLAUSES 235 

in others as well. Their influence upon the public law of some 
States has been considerable. ^'^^ Where the question referred 
has evidently been scrupulously and dehberately pondered, 
and especially if legal assistance has also been enjoyed, or where 
the reasoning is unimpeachable, an opinion may have practical- 
ly as much weight as if it had been delivered as a regular de- 
cision.^i^ This is particularly true if it has stood unquestioned 
for a good many years. So we find that the rules of different 
opinions are cited with approval in a good many litigated cases. ^^^ 
In many instances these rules have actually been "followed" 
in regular cases, though usually only after the court had revised 
them and were satisfied of their correctness.^^^ Sometimes 
an opinion may even be cited as the authority for a rule of 
law, i.e., as a leading case, when it has been "followed" for a 
number of years,^^^ or when it states the rule concisely and 

3"^ An evidence of this influence is seen in the fact that Thayer includes 
eight ad\dsory opinions in his Cases on Constitutional Law, and Cooley 
cites thirty in his Constitutional Limitations (6th ed.). 

310 See In re Opin. of the Justices, 214 Mass. 602. 

3" Nichols V. Election Commissioners, 196 Mass. 410; Dinan v. Smg, 
223 Mass. 516; Bingham v. Jewett, 66 N. H. 382; Wyatt v. State Board of 
Equalization, 74 N. H. 552; Thompson v. Pittston, 59 Me. 545; Allen v. 
Jay, 60 Me. 124; Donnell v. Joy, 85 Me. 119; Bangor v. Frankfort, 85 Me. 
128; The People v. Richmond et al., 16 Colo. 274; Henderson v. People ex 
rel. Wingate, 17 Colo. 587; Mayor, etc., v. Shattuck, 19 Colo. 104; and People 
ex rel. v. Sours, 31 Colo. 369. 

312 Adams v. Bucklin, 7 Pick. 125; Farwell v. Boston, 192 ISIass. 15; 
Young V. Duncan, 218 Mass. 346; Woods v. Woburn, 220 Mass. 416; Saw>'er 
V. Gilmore, 109 Me. 169; Laughlin v. City of Portland, 111 Me. 486; People 
V. Martin and People v. Orr, 19 Colo. 565; City of Denver v. Coulehan, 20 
Colo. 471; People ex rel. v. District Court of Arapahoe Co., 23 Colo. 150; 
In re Application of Morgan, etc., 26 Colo. 415; and Denver v. Londoner, 
S3 Colo. 104. 

313 Attorney-General v. Haverhill Gas Light Company, 215 Mass. 394; 
Dow V. Railroad, 67 N. H. 1; Amoskeag Mfg. Co. v. Manchester, 70 N. H. 
336; Murchie v. Clifford, 76 N. H. 99; French v. Lyme, 77 N. H. 63; People 
v. State Board of Equalization, 20 Colo. 220; People ex rel. v. Le Fevre, 21 
Colo. 218; Parks v. Soldiers' and Sailors' Home, 22 Colo. 86; Stuart v. 
Nance, 28 Colo. 194; and City of Denver v. Iliff, 38 Colo. 357. 



236 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

conveniently.^^^ There can be no objection to judges thus 
taking advantage of the wisdom and good reasoning of their 
predecessors as exhibited in advisory opinions just as they do 
when they are embodied in the dicta of regular cases. But 
the adoption of advisory rules should be critical and not slavish, 
voluntary and not compulsory. This warning applies especially 
to the lower courts of a State. The supreme court justices 
have sometimes expressed an apprehension lest their advisory 
opinions be in a sense a prejudgment of rights, because lower 
courts would usually be controlled in their decisions by the 
principles expounded in the opinions.^^^ Often this would 
doubtless be true,^^^ just as subordinate judges give much 
weight to the dicta of superior courts as foreshadowing the 
conclusions they would reach if the questions discussed ohiter 
had to be decided. There can be no great harm in this. Judges 
of the caliber to perceive the fallacies of dicta and opinions will 
usually realize well enough that they are not bound thereby. 

Coming to the exception appended to rule 13, we find a 
much simpler problem. The legal fondness for regularity and 
definiteness in procedure and interpretation has played a most 
important part in developing the advisory opinion. Many 
examples have been given, in this and previous chapters, of 
long series of opinions in a given State in which the same rule 
of interpretation or the same modus operandi was consistently 
followed. In many respects the practice of all the States is 
now approaching uniformity. If it were not for this consistency 
and uniformity, even an imperfect exposition of the advisory 
opinion could not have been written. It might almost be 
said that there is a real stare opinionibus theory in the United 

3" Watson V. Needham, 161 Mass. 404; and Citizens Gas Light Co. v. 
Wakefield, 161 Mass. 432. 

^^^ Functions of Judiciary, 148 Mass. 623; and In re Opin. of the Jus- 
tices, 190 Mass. 611. 

3^* C. F. & I. Co. V. State Board of Land Commissioners, 14 Colo. App. 
84, for example. 



INTERPRETATION OF ADVISORY OPINION CLAUSES 237 

States, at least as far as concerns the interpretation of the 
clause and the technic of the practice. In one hundred and 
fifteen of the four hundred and ten constitutional opinions 
rendered in the United States, there are citations to previous 
opinions in the same State, and references to opinions given 
in other States are almost as common. "It is the settled 
practice of this court," "It has been repeatedly pointed out 
that our opinions," "Testing the questions propounded by 
the rules established," and many other phrases of a similar 
nature, supported by numerous cases, are frequently encoun- 
tered in advisory opinions. Specific examples are scarcely 
necessary. The judges have shown as great a reluctance to 
vary the advisory practice as they do in htigated cases. An 
exception to an estabhshed rule is admitted only in extraordinary 
exigencies and a return to the "better practice" is made at the 
first opportunity. As a result, we have the existing, fairly 
well-organized, body of advisory opinion law. 



CHAPTER IV 
OTHER FORMS OF JUDICIAL INFLUENCE 

Before examining the effect of the advisory opinion scheme 
upon the position of the judiciary in a modern state, we may 
profitably notice some other devices which call upon the judges 
for extra-judicial activity. If a separation of powers were 
completely carried out, such activity would be prohibited. 
Yet the devices we are about to mention are all found in States 
of the Union or in Central or South American states which 
modeled their constitutions upon ours. The purpose, in every 
instance, would appear to be the same as that of the advisory 
opinion scheme — to secure expert legal assistance of a semi- 
official sort to legislators and executives who lack legal training 
and experience. The effect, in almost every case, if the device 
were used very much, would be much more radical than is true 
of the advisory opinion; the judiciary would at least exercise 
very great influence with the other departments and might 
even actually perform executive and legislative duties in their 
proper persons. 

The older expedients look to the co-operation of the executive 
and judicial departments, quite probably with the design of 
restraining a too-aggressive popular legislature. Thus in 1777, 
the New York constitution provided that the governor, chancel- 
lor and judges of the supreme court should constitute a council 
to revise all bills before or after passage by the general assembly, 
and a majority of this council could force repassage by two- 
thirds of both houses.^ As the judiciary had a majority repre- 
sentation, this practically placed in their hands a suspensive 

^"And whereas laws inconsistent with the spirit of this constitution, 
or with the pubUc good, may be hastily and unadvisedly passed: Be it 



OTHER FORMS OF JUDICIAL INFLUENCE 239 

veto quite similar to that now enjoyed by the president of the 
United States, and besides gave them the privilege of criticising 
pending bills. The revisory council did not survive a renova- 
tion of the constitution in 1821. There was very Httle oppo- 
sition to dropping it. Not much of a case is made out against 
it in the convention debates, yet its downfall was certain from 
the start, due rather to prejudice or an objection on principle 
than to actual grievances. Some of the arguments urged against 
it are essentially identical with arguments made against the 
advisory opinion.^ A few claimed that the judges were the 
real legislature, under this system, and could defeat the will 
of the people. Mr. Piatt of Oneida looked up the record of the 
council and found that of the sixty-five hundred and ninety bills 
passed by the legislature from 1777 to 1815, the council had 
vetoed one hundred twenty, or less than two percent, and only 
forty-three of these on grounds of expediency. Seventeen had 

ordained, that the governor for the time being, the chancellor, and the 
judges of the supreme court, or any two of them, together with the governor, 
shall be, and hereby are, constituted a council to revise all bills about to be 
passed into laws by the legislature. . , . And that all bills which have 
passed the senate and assembly shall, before they become laws, be presented 
to the said council for their revisal and consideration; and if, upon such 
revision and consideration, it should appear improper to the said council, 
or a majority of them, that the said bill should becom.e a law of this State, 
that they return the same, together with their objections thereto in -^Titing, 
to the senate or house of assembly (in whichsoever the same shall have 
originated) who shall enter the objections sent down by the coimcil at large 
in their minutes and proceed to reconsider said bill. But if, after such 
reconsideration, two-thirds of said senate or house of assembly shall, not- 
withstanding the said objections, agree to pass the same, it shall, together 
with the objections, be sent to the other branch of the legislature, where 
it shall also be reconsidered, and, if approved by two-thirds of the members 
present, shall be a law." — From section 3 of the N. Y. Const, of 1777. 

2 Cf. a later criticism by Baldwin — Amer. Judiciary, p. 31 : "An obvious 
objection to this method of legislation is that the judges who, as members 
of a coimcil of revision, find nothing objectionable in a bill presented for 
their scrutiny, must naturally have a certain pride of opinion to conquer 
before, should its constitutionality become afterward the subject of litigation 



240 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

passed over the council's veto. But the justification was 
futile and, as Mr. Root said, merely a "requiem. "^ 

It will be recalled that a serious effort was made by Madison, 
Gouverneur Morris and others to include this revisory council 
plan in the federal constitution,* and that the failure of the 
movement was possibly due to a feeling that the legislature 
would be sufficiently checked by a presidential veto coupled 
with a judicial power to declare acts null and void. The scheme 
met with a better reception in Ilhnois, where it was received 
into the constitution of 1818 (Art. Ill, sec. 19) in almost the 
exact words of the New York model. But here again it lasted 
only until a new constitution was framed, for it does not appear 
in the constitution of 1848. It is beUeved that the council 
of revision has not found a place in any of our State constitu- 
tions since that time. In a letter of 1790, President Washing- 
ton intimated that the judiciary system might be perfected 
more readily if the results of judicial experience were communi- 

before them, they could be in a frame of mind to render an unprejudiced 
judgment. One of the bills which came under the eye of Chancellor Kent 
as a member of the Council was afterward the source of controversy before 
him in court. He adhered to his original views, but was over-ruled by the 
Supreme Court of the United States." This is the inherent positivity of 
human nature and might be illustrated as well by the characteristic tenacity 
of opinion exhibited by judges when dealing with a case already decided 
by them in a lower court. But judges have also been known to change their 
minds upon reconsideration, both when their first opinion was extra-judicial 
and when it was a formal decision. So the criticism has not much cogency 
after all. As to the particular instance given, it might be pointed out that 
the opinion of Chancellor Kent was approved by all the judges of the New 
York Court of Errors (Gibbons v. Ogden — 17 Johns. 488) before the case 
was taken to the supreme court of the United States; also that Chancellor 
Kent and the Court of Errors paid no attention to the approval of the 
Council of Revision, but relied on an earlier case (Livingston v. Van Ingen, 
9 Johns. 507). 

3 Deb. N. Y. Conv. 1821, p. 47. 

* See pp. 55-57 supra. 



OTHER FORMS OF JUDICIAL INFLUENCE 241 

cated to him, but there is no record that the judges ever availed 
themselves of this invitation.^ 

Co-operation between the legislature and the judiciary 
has been encouraged in various ways. The IlHnois convention 
of 1870 recognized that the judges, both of the supreme court 
and of lower courts, were especially well qualified to know the 
imperfections and lacunae in the laws as they existed, both 
because of their legal training and experience and because of 
their daily application of the laws to particular sets of facts. 
They provided that the judges of all courts of record should 
report annually to the judges of the supreme court and that 
the latter should report to the legislature upon defects or omis- 
sions in the laws and should suggest appropriate corrective 
legislation.^ The Nebraska convention of 1875 copied this 
provision in part,^ and the Colorado constitution of 1876 re- 

5 "I have always been persuaded, that the stabihty and success of the 
national government, and consequently the happmess of the people of the 
United States, would depend in a considerable degree, on the interpretation 
and execution of its laws. In my opinion, therefore, it is important, that 
the judiciary system should not only be independent in its operations, 
but as perfect as possible in its formation. As you are about to commence 
your first circuit, and many things may occur in such an unexplored field, 
which it would be useful should be known, I think it proper to acquaint 
you, that it \vill be agreeable to me to receive such information and remarks 
on this subject, as you shall from time to time judge expedient to communi- 
cate." — Spark's Washington, X, p. 86. 

^ ''All judges of courts of record, inferior to the supreme court, shall, 
on or before the first day of June of each year, report in writing to the judges 
of the supreme court such defects and omissions in the laws as their exper- 
ience may suggest; and the judges of the supreme court shall, on or before 
the first day of January of each year, report in writing to the governor such 
defects and omissions in the constitution and laws as they may find to exist, 
together mth appropriate forms of bills to cure such defects and omissions 
in the laws.?'— Art. VI, s. 31, of the Constitution of 1870. 

■^ ''The ofl&cers of the executive department and of all the public institu- 
tions of the State shall, at least ten days preceding each regular session oJ 
the legislature, severally report to the governor, who shall transmit such 
reports to the legislature, together with the reports of the judges of the 



242 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

produces it almost verbatim.^ Since then it has appeared, 
with various minor changes, in the Florida constitution of 
1885,^ the Idaho constitution of 1889/° the Washington con- 
stitution of 1889/1 and the Utah constitution of 1895.^2 Qne 
broad distinction may be noticed — the governor, or (in Florida) 
the attorney-general, may be free to submit to the legislature 
only such part of the judicial suggestions as he deems advisable 
(Florida, Ilhnois, Utah, Washington), or he may be required 
by the constitution to transmit the report and suggestions 
entire (Colorado, Idaho, Nebraska). In the form in which 
this power of suggesting legislation is found in the Venezuelan 
constitution of 1904, the executive department has no share 
in it at all. The supreme court includes in its biennial report 
to the National Congress a statement of the elements unfavor- 
able to a uniformity in civil, criminal and commercial legisla- 
tion.i^ The Panama constitution of 1904 goes farther still, 
for it prohibits the enactment of legislation of a civil nature 
or touching judicial procedure except upon the suggestion of 
the special committees of the Assembly, or of the justices of 
the supreme court of justice.^^ An investigation of the working 
of these devices is not within the scope of this work.^^ 

supreme court, of defects in the constitution and laws." — From Art. V, s. 
22, of the Constitution of 1875. 

8 See Art. VI, s. 27. 

9 Art. V, s. 13. 

10 Art. V, s. 25. 
" Art. IV, s. 25. 

12 Art. VIII, s. 22. 

13 "Los inconvenientes que, a su juicio, se opongan a la imiformidad de 
la legislaci6n civil, criminal y mercantil." — Art. 96. |pjs' ^ 

1* ''Exceptuanse de esta disposicion las leyes sob re materia civilly 
procedimiento judicial, que no podrdn ser modificadas sino a propuesta de 
las Comisiones especiales de la Asamblea, 6 de los Magistrados de la Corte 
Suprema de Justicia." — From Art. 98. P'lj P^ ^, 

15 However, an evidence that the Colorado provision is not a dead letter 
may be found in the 1897 message of Governor Mclntire: "I herewith 
transmit five several bills prepared by the honorable judges of the supreme 



OTHER FORMS OF JUDICIAL INFLUENCE 243 

In some of the Central and South American republics, there 
is a still more intimate intermingling of the two departments, 
for the judiciary is entrusted with the actual exercise of certain 
legislative functions. They seem to lack only a vote in the 
assembly in a few instances. The initiative in the formation 
of bills upon judicial matters is assigned to them in Peru,^^ 
Guatemala,^^ San Domingo,^^ Ecuador,^^ Honduras,^^ and Nicar- 
agua.^^ The initiation of all legislation is given without re- 
striction to the deputies, president and supreme court in Salva- 
dor,22 but in another article there is an indication that the 
justices are to use this right only to introduce reforms necessary 
to cure imperfections or deficiencies in the existing law which 
they have noted in applying it.^^ In Colombia the judges are 
even privileged to be heard in debate, on bills relating to civil 
matters or judicial procedure,^ and the same result appears 

court for the correction of certain defects in the laws of the state in obedience 
to Section 27 of Article VI, of the State constitution, and by them to me 
transmitted, together with certain resolutions passed at a meeting composed 
of seven district judges and one county judge, and by them reported to the 
judges of the Supreme Court, who in turn transmitted them to the execu- 
tive. I recommend the passage of the bills transmitted and the considera- 
tion of the resolutions indicated." — HJ. 1897, p. 46. 

i« Constitution of 1860, Art. 67. 

" Constitution of 1879, Art. 56. 

18 Constitution of 1896, Art. 27. 

19 Constitution of 1897, Art. 67. 

20 Constitution of 1904, Art. 76. 

21 Constitution of 1905, Art. 64. 

22 "Tienen exclusivamente la iniciativa de ley los Diputados, el Presi- 
dente de la Republica por conducto de sus Ministros y la Corte Suprema de 
Justicia. "— Art. 71, of the Constitution of 1886. 

23"Hacer uso del derecho de iniciativa manifestando directamente al 
Poder Legislativo la inconveniencia de las leyes y vaclos que hubiese notado 
para su aplicacion, indicando las reformas de que scan susceptibles. " — Art. 
102, s. 4. 

24 Constitution of 1886, Art. 84. 



244 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

to be attained in Salvador,^^ Honduras,^^ and Nicaragua,^^ by a 
provision that bills (not introduced by the supreme court) 
modifying or repealing any section of the codes or affecting the 
administration of justice shall not be passed until the opinion of 
the supreme court has been heard. The congress may be 
empowered to fix a time limit for the giving of that opinion 
(as in Honduras) or the justices may choose their own time, 
within the current or following session, according to the impor- 
tance and urgency of the measure (as in Salvador and Nicara- 
gua). In Salvador the provision does not apply to laws of 
a poUtical, economic or administrative order. 

These schemes really differ but little from the advisory 
opinion as applied to the legislature. In effect we have here a 
compulsory advisory opinion upon certain kinds of pending 
bills.^^ The most sahent objection to such an arrangement is 
that it makes a very serious demand upon the time of the 
judiciary. It would be unworkable in any State of the United 
States until the legislatures greatly curtail the number of bills 
considered in a single session. There can be no doubt that 
an advisory revision of pending bills by the judges would 
result in a marked improvement in the quahty of our legislation, 
but an insistence upon higher standards in choosing legislators 
would obviate the need for such advice save in occasional 
instances. It is to be understood, of course, that the legislature 
is free in any case to pass finally upon the questions of poUcy 

2* Constitution of 1886, Art. 79. 

26 Constitution of 1904, Art. 83. 

27 Constitution of 1905, Art. 71. 

28 Cf. the provision included by the Iowa legislature of 1913 in its 
initiative and referendum proposal. The secretary of state shall submit 
all measures mitiated by the people to the supreme court for an opinion 
concerning their constitutionaUty. The court must report within twenty 
days, and if the report is unfavorable as to constitutionality, the secretary 
of state must refuse to submit the measure to the people. Amer. Year 
Book 1913, p. 77. 



OTHER FORMS OF JUDICIAL INFLUENCE 245 

involved, that is to decide whether it is advisable that the bill 
revised should be made law. 

There is a middle ground between the compulsory form of 
advisory opinion just discussed and the optional form which 
exists in the United States. This is illustrated in the constitu- 
tional clauses of Colombia and Panama mentioned in an earlier 
chapter.^^ Here there is a compulsory reference to the supreme 
court only when there is an open disagreement between the 
legislature and the president as to the constitutionality of a mea- 
sure awaiting the latter 's signature. This seems very com- 
mendable. If there is a real difference of opinion between 
these two governmental organs upon the question of constitu- 
tionahty, the ideal method of settlement is for the judiciary to 
decide. That is precisely the question they will decide anyway 
in case of subsequent Htigation involving the measure,^*^ and 
why should they not decide it while the matter is res integra? 
Certainly a subsequent repassage of the bill by a two-thirds 
majority in both houses is not very satisfactory proof that it 
is constitutional, and, as we well know, will count for nothing 
with a court in its dealing with the law later. In the two 
constitutions mentioned, the decision of the court in favor of 
the bill's constitutionaHty forces the executive approval, while 
an adverse decision retires it " to the archives. " This is a per- 
fectly logical result. If the president's sole objection is that 
the measure is unconstitutional and the court disagrees with 
him, his approval should inevitably follow. On the other hand, 
if the court agrees with the executive, the bill should fail. There 
is no reason why the judgment of either the executive or legis- 
lature should prevail against that of the other two departments 
of government. If the executive disapproves the bill partly 
on constitutional and partly on political grounds, the situation 
is more complex. A sound poUtical science would seem to 
require that both approval of the bill by the supreme court 

29 See p. 94 supra. 

3° Under the American doctrine of ''judicial supremacy." 



246 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

and its repassage by two-thirds of the legislature should be 
necessary to command the executive sanction and promulgation. 
An arrangement of this description would probably prevent 
some of the chief executives of our States sheltering their 
pohtical objections to a measure behind alleged unconstitution- 
ahty, as they occasionally do at present. 

Lastly, it will not be amiss to point out that the judges may 
be called upon to advise officials of the other departments 
constituted for the time being as a court and performing func- 
tions of a judicial nature. We have seen how the House of 
Lords, when sitting as a court, has commanded the assistance 
of the English judges from the Middle Ages to the present 
day.^^ Similarly, after our separation from England, the upper 
house of our different legislatures was often joined with the 
judges in the exercise of a judicial function. In one State, the 
upper house and the judges formed the highest court of appeal.^^ 
More commonly the upper house is made the court of impeach- 
ment, and it may be required that the judges assist them regu- 
larly,^^ or that the chief justice preside over the court when the 
chief executive is being tried, as in the federal constitution.^ 
That the chief justice is present in an advisory capacity and 
not as a regular member of the court is made clear by the reser- 
vation in the New Hampshire constitution that he shall "have 
no vote therein." Hamilton, in explaining why the supreme 
court was not combined with the senate to form a court of 
impeachment in the federal constitution, says if the chief 
justice presides over the court "the benefits of that union will 
be obtained . . . while the inconveniences of an entire incor- 
poration . . . will be substantially avoided. "^^ Relations 
of somewhat the same nature existed between the judiciary 

'^ See pp. 18-25 supra. 

"N. Y. Constitution of 1777, Art. 32. 

33 N. Y. Const, ihid., and South Carolina Const, of 1778, Art. 23. 

3* N. H. Const, of 1792, Sec. 40; and Conn. Const, of 1818, Art. IX, s. 2. 

» The FederaUst, No. LXV. 



OTHER FORMS OF JUDICIAL INFLUENCE 247 

and executive in those rare instances where the latter performed 
judicial duties. Pennsylvania, in the constitution of 1776, 
made the president and council the court of impeachments 
and gave them the privilege of "taking to their assistance, for 
advice only, the justices of the supreme court. "^^ Vermont 
adopted precisely the same plan in 1111 P In neither State 
did it survive for very many years. Pennsylvania discarded 
it in 1790. In Vermont it was continued in the constitutions 
of 1786 and 1793,^^ but was changed by an amendment in 1836.^^ 
No similar clause is found in existing State constitutions, but 
the New York constitution still provides that the court of im- 
peachment shall consist of the senate and the judges of the high- 
est court,^'' and it is very common to require that the chief 
justice shall preside either in general or at the impeachment of 
certain officials. 

^ Sec. 20, of the Frame of Government. 
" Sec. 18, of the Frame of Government. 
38 Sec. 11, of the Frame of Government. 
39Poore, 1884. 
«Art. VI, s. 13. 



CHAPTER V 
THE PLACE OF THE ADVISORY OPINION 

In the pure despotic monarchy of the Middle Ages, the 
government, i.e., the monarch, knew no limitations. State 
and government were identical. The increasing complexity 
of the problems in later political societies, together with the 
crystallization of that intangible ethos we call democratic con- 
sciousness, in the course of time forced a division of govern- 
mental tasks, an apportionment of duties functionally different 
inter se to different state officials. As these departments be- 
come estabhshed, they attain the dignity o£ state organs. The 
number of departments is of no significance. A priori, a quad- 
ruplification or a duahsm in government could be elaborated 
as easily and as logically as the present tripartite arrangement. 
It is in a sense accidental that an imperfect trichotomy of the 
eighteenth century suggested the ideal of Montesquieu which 
has been a guiding star to the repubhcs of the two Americas. 

One of the most noteworthy results of the separation of pow- 
ers theory^ is the erection of a relatively independent depart- 
ment of government known as the judiciary. Stated broadly, 
its function is to interpret and apply the law of the land. This 
involves determining what is the law of the land as well as 
expounding its meaning. But in the United States constitution- 
al system it is understood that the judges are not authorized 
to declare and explain the law, in the exercise of their judicial 
powers, save on certain occasions. They must act only when 
real litigations are brought before them for settlement. If 
they "pronounce upon a law without resting upon a case, 
(they) clearly step beyond (their) sphere, and invade that of 

^ For a brief statement of the theory as it is understood by publicists 
u] the United States, see pp. 168-169 supra. 



THE PLACE OF THE ADVISORY OPINION 249 

legislative authority. "^ Furthermore, it is considered essential 
that the adjudication be followed (if necessary) by an execution 
carrying it into effect.^ In strict law, then, a decision will 
not be given unless it will be a final pronouncement upon the 
rights of the parties to an action, nor will a decision be given 
upon points not necessarily involved in deahng with the pending 
case, even at the request of another department of govern- 
ment.^ But perhaps an exception may be made where there 
is an important question that affects the pubhc, if an opinion 
is necessary to prevent future conflicting decisions.^ 

In the strict exercise of the judicial power just described, 
the judges are inevitably brought into contact with the other 
departments in many ways. They may often clash with the 
law-giving body through a disagreement as to the constitutional 
limitations imposed upon legislation. It is possible that they 
may have to decide which of two bodies is the lawful legislature, 
in order to know what is law.^ More frequently the executive 
department will feel the weight of judicial authority, since 
practically all executive officials may be summoned before 
a court to answer for wrongs committed against a private 
citizen. The title by which they claim to hold office may be 
questioned, they may be enjoined from the performance of 
certain acts, they may be commanded to carry out certain 
tasks. The president is beyond the reach of the judiciary and 
can be brought to account only by impeachment. This seems 
to be true of the governor too in some States^ but there is a 
conflict of authority on the question.^ 

* De Tocqueville, Dem. in Amer. I, Ch. 6. 

8 Taylor v. Place, 4 R. I. 324; Gordon v. U. S., 117 U. S. 697, at p. 704. 

* Wyatt V. State Board of Equalization, 74 N. H. 552; State v, Baugh- 
man, 38 Ohio State, 455; and cf. Queen v. Robertson, 6 Can. S. C. R. 127. 

« Matter of Madden, 148 N. Y. 136; Matter of Emmett, 150 N. Y. 538; 
Matter of Fairchild, 151 N. Y. 359; and Matter of Norton, 158 N. Y. 130. 

^ Statement and Questions Submitted, etc., 70 Me. 600. 

"> People ex rel. v. Bissell, 19 111. 229. 

^ Baldwin, American Judiciary, p. 48, and see In the matter of Hughes, 
61 N. C. 57. 



250 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

Furthermore the activities of members of the judiciary are 
not confined to labors that are purely judicial in character. 
"It is safe to assert that in no State are the functions of the 
courts purely judicial."^ There are many governmental tasks 
other than the adjustment of private disputes in htigated cases 
which call for the consistent, analytical treatment character- 
istic of the legal mind — tasks for which the judges are pre- 
eminently fitted, and which they could perform more readily 
than other officials. So legislators have found the judiciary 
"a convenient depositary of many quasi-legislative and quasi- 
executive functions. "^^ It is not easy to determine how far 
the judiciary will acquiesce in such a deposition.^^ There is 
no general principle, but a number of isolated rules may be 
found in different States. It seems settled both in the State 
and federal governments that the legislature cannot require 
a court to go through the form of a trial and pass upon private 
claims, where the decision is advisory only and subject to legis- 
lative or executive review.^^ In other words, if the legislature 
intends to impose judicial duties upon the courts, it must 
provide for their exercise in a judicial manner.^^ The legisla- 
ture should not exercise judicial powers at all.^'* Conversely, 
the judiciary will do nothing which will be a clear interference 
with the independent rights and duties of the other depart- 
ments,^^ or will be merely a criticism of a coordinate branch 
of the government.^^ 

^ Baldwin, op. cit., p. 22. 

^° Baldwin, op. cit., p. 23. 

" In some States it has been said that the legislature could not impose 
non-judicial duties upon the judges at all. In the matter of the Application 
of the Senate, 10 Minn. 78; and In re Opinion of the Judges, 25 Okla. 76. 

I'Dinan v. Swig, 223 Mass. 516. 

"Haybum's Case, 2 Dall. 409; and cf. U. S. v. Yale Todd, reported 
as a note to U. S. v. Ferreira, 13 How. 40. 

" Taylor v. Place, 4 R. I. 324. 

" State V. Fleming, 70 Nebr. 523; Reply of the Judges, etc., 33 Conn. 
586; and Opin.s of the Justices, etc., 64 N. C. 785. 

» Opin. of the Justices, 56 N. H. 574; and In re SR. No. 4, 54 Colo. 262. 



THE PLACE OF THE ADVISORY OPINION 251 

It is common knowledge that the separation of powers in 
the United States is far from complete. Each department 
performs many tasks that do not properly faU within its juris- 
diction, and very often the same set of facts will be dealt with 
by different departments. Also it is generally recognized that 
a complete separation of powers would not merely be impractica- 
ble, but fatal to the state wherein it existed. But where should 
we draw the Hne? It would be difficult to generalize so as 
to cover all possible cases. Each must be decided with refer- 
ence to the attendant circumstances. But one fundamental 
guiding principle should be kept before our eyes at all times — 
the separation of powers should be an instrument both of demo- 
cracy and of efficiency. There are daily evidences that the 
separation has gone too far in the United States, that it is 
responsible for a great waste of governmental energy. We 
witness a deplorable lack of co-operation between the different 
organs of the state, a deficiency of which the expense to the 
people is enormous. The legislature makes bhnd appropria- 
tions, sometimes extravagant, sometimes inadequate, for exe- 
cutive expenses. Laws are brought into existence at much 
travail and expense only to be declared nuUities as soon as 
brought before the court of last resort. Professor Baldwdn 
estimates that one out of every three hundred statutes passed 
by our law-making bodies is declared never to have been law 
at all.^^ What is still worse, often these unconstitutional 
"laws" go unimpeached for years, while private rights are based 
upon their vaHdity, only to meet disaster in the crucial test. 
Meanwhile, in our jurisprudence, there is a conclusive presump- 
tion that every citizen, including the officials of the executive 
and legislative departments, knows the law, although in fact 
it is impossible for anyone to know it.^^ 
C Lack of space forbids detaiUng more of the innumerable 
examples of a failure of our governmental organs to work to- 

^^ Amer. Judiciary, p. 107. 

^8 "Since the doubtful point may be the true construction of the fun- 
damental law of the Union, the President and Congress may be left La un- 



252 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

gether; they are within the knowledge of every reader. Embar- 
rassments, tangles, missteps, inconsistencies, discords are of 
e very-day occurrence in our public affairs, and they all spell 
waste. >The greatest problem before political scientists today 
is to reconcile democracy and efficiency. The world has made 
marked progress in solving that difficult problem of the recon- 
ciliation of government with liberty of which Professor Burgess 
has written so entertainingly in his recent book.^^ This critical 
student of political society declares that the American theory of 
government offers the most satisfactory solution of his problem 
that has yet appeared, and that the solution rests fundamentally 
on a separation of powers which entrusts the guardianship of 
individual rights to a fearless and independent judiciary. 
With this we agree; but the solution has been productive of 
another problem, for the economic principle of a division of 
labor is only a success when all the groups are complementary, 
working in harmony towards a common end. (it is as if there 
were three cragsmen roped together for the ascent of a cliff. 
The success of the expedition depends upon the mutual help- 
fulness of all the individuals. If each one, instead of anticipa- 
ting the difficulties ahead of his companions and suggesting 
methods for circumventing them, contents himself with com- 
menting on reverses only when they are suffered and criticizing 
past errors, what a wealth of effort goes to waste. And surely 
no independence is sacrificed by such helpfulness — each is 
still a "check" upon the others in time of necessity. Our 
present political problem is to build up a cordial sympathy 
and mutual co-operation between the three departments: with- 
out affecting the solution of Professor Burgess' problem, i.e., 

certainty as to how they shall shape their course. With the best wish in 
the world to act conformably to the Constitution, these authorities have no 
means of ascertaining before they act what, in the view of its authorized 
interpreters, the true meaning of the Constitution is." — Bryce, Amer. 
Commonwealth, I, pp. 352-3. 

1^ Reconciliation of Government with Liberty (1915). 



THE PLACE OF THE ADVISORY OPINION 253 

/ without interfering with the domain of individual Uberty under 
the constitution or the independence of the judiciary. /' 

Will the advisory opinion be a desirable step in that direc- 
tion? Before we attempt to answer this question categorically, 
let us review summarily the arguments for and against the 
device as they have been brought out by the practice in our 
country. As generally understood, the advisory opinion is an 
opinion rendered by the highest judicial officers in the state, 
acting as individuals and not in a judicial capacity, in response 
to a request for information as to the state of the law or counsel 
as to the constitutionality of proposed action, coming from the 
legislative or executive branches of the government. The 
form in which its usefulness appears varies with the question 
asked. In connection with pending legislation, it is designed 
to improve the form of bills, to make for perspicuity, consistency 
and satisfactory technic, to reduce the possibihty of enacting 
statutes that will have to be declared null and void. In con- 
nection with completed legislation, it is valuable as indicating 
to the legislative department the need for further legislation, 
as furnishing to the executive department a construction that 
will insure a consistent and, in all probabihty, correct adminis- 
tration of the statute, as informing the people whether what 
appears to be law is actually binding upon them, in whole or 
in part. Why should it be necessary for these groups to be 
unenlightened by the wisdom of the chosen judicial servants 
of the state, until some individual is wilhng to devote enough 
time and money to bring the matter up in connection with a 
particular set of facts? We know too that there are many 
public questions that can with difficulty be brought before a 
court in a regular case. Not only would an opinion often 
prevent errors on the part of the public, doing away with a 
great deal of uncertainty and confusion, but it would in many 
instances save the taxpayers considerable expense. The cost 
of enacting an unconstitutional statute and then going through 
the process of getting it declared unconstitutional is a dead 



254 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

loss to the state's treasury. Again, suppose the governor 
contemplates calling an extra session of the legislature, if he 
is not satisfied that certain things are prohibited or secured 
in the existing statutes, as in In re Opinion of the Justices, 
73 New Hampshire, 625. Is it not worth while economically 
to assure him upon this point? 

We have dealt in detail with the principal objections which 
have been raised against advisory opinions in the preceding 
pages. The complaint that legal assistance should be at hand 
is met by the employment of amici curiae. Indeed, if it is 
known that certain parties are interested in the question, they 
may be invited to send counsel to a pubhc hearing on the ques- 
tions of law involved. But, we are told, questions of law should 
be settled with reference to particular facts, never in the ab- 
stract. We may set off against this the view of a North 
CaroHna chief justice that "the question' is more easy of 
solution now, when it can be treated as a dry matter of con- 
stitutional law, than it might be hereafter, when compHcated 
with collateral considerations. "^"^ An even more convincing 
answer is that the questions are not "settled" once and 
for all. They are settled provisionally as it were. The 
probabiUty is that the opinion will prevail in later cases, for 
the reason that in all probabihty it is correct. However, sub- 
sequent Htigants are in no wise hindered from demanding a 
reconsideration in the Hght of their particular case. That is 
the beauty of the scheme. Though it binds no one — judges, 
interrogator or pubhc — still it will carry the weight of high 
judicial prestige and will usually be followed by everyone 
concerned. Still this has been the crucial objection of some 
critics. They complain that opinions given extra- judicially 
will inevitably influence judicial action in later cases; subordi- 
nate judges would not venture to disregard the opinions of 
their brethren in the supreme court, and these latter justices, 
if not insensibly biassed by their earlier conclusions, will be 

20 Opin.s of the Justices, etc., 64 N. C. 785. 



THE PLACE OF THE ADVISORY OPINION 255 

slow to overcome the pride of first convictions and admit that 
they have changed their minds. It is supposed that the rights 
of later htigants wiU at least be prejudiced, if not prejudged. 
There are two points of weakness in this attack. The first 
has just been mentioned — there is no obligation upon any 
member of the judiciary to adopt the principles stated in an 
advisory opinion. Therefore higher and lower judges aHke 
should treat advisory opinions merely as evidence of truth. 
There can be no harm in this. A careful and impartial judge 
will naturally welcome any expositions or considerations that 
will assist him in reaching a correct conclusion. Why should 
the studied reasoning and thoughtful pronouncements of his 
learned predecessors not play an important part in his investi- 
gations? Why should his own opinions when the question was 
first presented to him not serve as a starting point for renewed 
examination, if, as an experienced judge, he is ever mindful 
that human reasoning is potentially erroneous? The decisions 
in one State are not binding upon the judges of another State; 
yet they command respectful attention and in many cases 
are followed without qualification. It is by no means unknown 
for dicta to grow into rules by judicial adoption and appKcation 
in a proper case. The explanation of the hearing given to 
dicta and extra-territorial decisions is a justification for the 
deference to advisory opinions as well. All three merit the 
regard of judges in proportion as they embody learning and 
logic that appeal to the convictions. This brings us to the 
second weakness in the indictment. The statement that 
private rights will suffer injury from advisory opinions assumes 
a superficiahty and incorrectness in such opinions. Injury 
could scarcely result from a correct statement of the law. Now 
as a matter of fact advisory opinions have been remarkably 
sound. We do not hesitate to say the proportion of ''over- 
ruled" opinions is as low as that of over-ruled cases of the same 
difficulty. Why should this not be so as a rule? It must not 
be assumed that the brevity of an opinion connotes sHght 



256 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

investigation.^^ Many of them bear evidences of much thought 
and research. It is quite common for the opinion to be rested 
entirely upon regular cases cited therein. The amount of 
possible injury to private rights inherent in such opinions is 
surely minimal, and insignificant as compared with the great 
benefit to the commonwealth as a whole. 

The judges themselves have not always looked upon the 
scheme with favor. Now and then they have expressed their 
appreciation of the honor done them by inquiries from the 
coordinate branches of the government,^^ and have compHed 
with the requests quite " cheerfully . "^^ Even though not 
required to answer by the constitution, the North Carohna 
justices in one case acknowledged that to reply would be merely 
a duty of courtesy and respect.^ The Massachusetts justices 
on the whole have been very Uberal in the advisory opinion 
practice,^^ and the clause seems to have operated very success- 
fully in that State.^^ But the tendency of the judges in most 
jurisdictions is to discourage the practice.^^ They have in 
some States dealt harshly with constitutional advisory opinion 
clauses, and in one instance where the judges refused to comply 
with a statute authorizing these opinions, they went out of 
their way to say that a constitutional clause on the same subject 

21 E.g., see the reporter's note in Opin. of the Justices, 52 N. H. 622; 
and the remarks of Hayt, C. J., in Parks v. Soldiers' and Sailors' Home, 22 
Colo. 86. 

"Opin. of the Justices, 126 Mass. 547; and Opin. of the Justices, 126 
Mass. 557. 

"Opin. of the Justices, 5 Mete. 591; and In re Railroad Commis- 
sioners, 15 Nebr. 679. 

24 Opin. of the Justices, 31 N. C. App. 

2* "The Justices have manifested no disposition to analyze nicely or 
construe narrowly their duty under the Constitution to give opinions to 
the other departments of government. They always have interpreted 
broadly the duty imposed, as is necessary in the consideration of a great 
charter of government." — In re Opin. of the Justices, 214 Mass. 602. 

20 See p. 38 supra. 

" See Albany L. J. LIX, p. 21. 



THE PLACE OF THE ADVISORY OPINION 257 

"does not address itself to our minds with any favor. "^s ^he 
reasons given for this opposition do not seem very substantial, 
as we have tried to show. We confess it is not particularly 
surprising that the judges take this position. No profession 
is more circumscribed by traditional limitations. The concept 
of precedent is the corner-stone of judicial habits of thought. 
This has its advantages. It has made the judiciary the greatest 
conservative element in our pohtical societies. But it can be 
carried too far. We have seen recently in the United States 
that too stubborn an unresponsiveness to changed conditions 
may bring about a popular censorship of particular judges or 
decisions that is dangerous in the extreme to sound constitu- 
tional theory. Also, apart from theoretical antagonism, the 
judges cannot fail to be reluctant to undertake a task that will 
often be onerous, embarrassing and unpleasant. But this re- 
luctance should be overcome if the task is a duty, the perform- 
ance of which will contribute to the making of a more efficient 
governmental system. The advisers will be sufficiently pro- 
tected in ordinary cases, if they will insist with one voice that 
their opinions are advice and nothing more. In embarrassing 
situations, a representation to the questioner that it is unde- 
sirable to reply would usually produce an acquiescent with- 
drawal. Finally it cannot be supposed that the people would 
permit a gross abuse of the consultative function to go un- 
checked. 

We conclude that there is a presumption in favor of the 
advisory opinion as a useful instrument of government. It 
seems justified in theory; it has proved its value in practice. 
In solving the big governmental problem of the day, it is a 
step in the right direction. It is one of the few surviving agen- 
cies that made for efficiency in the monarchical form of govern- 
ment. Is it not possible that it may yet serve the same purpose 
equally well in our democracies? 

28 In the matter of the Application of the Senate, 10 Minn. 78. 



APPENDIX I 

The Advisory Opinion Clauses or the State Constitutions in 
Chronological Order 

Massachusetts 

"Each branch of the legislature, as well as the governor and council, 
shall have authority to require the opinions of the justices of the Supreme 
Judicial Court upon important questions of law, and upon solemn occa- 
sions."— Part 2, Chapt. Ill, Art. 2, of the Constitution of 1780. Poore, 
968. 

New Hampshire 

"Each branch of the legislature, as well as the president and council, 
shall have authority to require the opinions of the justices of the Superior 
Court upon important questions of law, and upon- solemn occasions." — 
From the Article on the Judiciary, in the Constitution of 1784. Poore, 1290. 

This was repeated as Section 74 of the Constitution of 1792, with 
"governor" substituted for "president." In this form it was repeated as 
Article 73 of Part 2 m the Constitution of 1902. Poore, 1305, and 
Thorpe, IV, 2509. 

Maine 

"They shall be obliged to give their opinion upon important questions 
of law, and upon solemn occasions, when required by the governor, council, 
senate, or house of representatives." — Article VI, Section 3, of the Con- 
stitution of 1820. Poore, 796. 

Rhode Island 

"They shall also give their written opinion upon any question of law, 
whenever requested by the governor, or by either house of the general 
assembly." — Article X, Section 3, of the Constitution of 1842. Poore, 1611. 

This was reaffirmed in a judicial amendment (Amendment XII, Sec- 
tion 2) adopted November 3, 1903. Thorpe, VI, 3240. 

Missouri 
"The judges of the Supreme Court shall give their opinion upon im- 
portant questions of constitutional law, and upon solemn occasions, when 
required by the governor, the senate, or the house of representatives; and 
aU such opinions shall be pubUshed in connection with the reported decisions 
of said court." Article VI, Section 11, of the Constitution of 1865. Poore, 
1149. 



APPENDIX I 259 

Florida 

"The governor may at any time require the opinion of the justices 
of the S^ipreme Court as to the interpretation of any portion of this con- 
stitution, or upon any point of law, and the Supreme Coiurt shall render 
such opinion in writing." Article VI, Section 16, of the Constitution of 
1868. Poore, 352. 

"The governor may at any time require the opinion of the justices of 
the Supreme Court as to the interpretation of any portion of this constitu- 
tion upon any question affecting his executive powers and duties, and the 
justices shall render such opinion in writing." Article VI, Section 16, 
as changed by Amendment XI, of 1875. Poore, 368. In this form it was 
repeated as Article IV, Section 13, of the Constitution of 1885. Thorpe, 
II, 740. 

Colorado 

"The Supreme Court shaU give its opinion upon important questions 
upon solemn occasions when required by the governor, the senate, or the 
house of representatives; and all such opinions shall be published in connec- 
tion with the reported decisions of said court." This was an Amendment 
to Article VI, Section 3, adopted on November 2, 1886. Vide L. 1887, 
p. 483. Mills Ann. St. 1912, I, c. 132. (This is carelessly omitted from 
Thorpe's Constitutions.) 

South Dakota 

"The governor shaU have authority to require the opinions of the 
judges of the Supreme Court upon important questions of law involved in 
the exercise of his executive powers and upon solemn occasions. " Article 
V, Section 13, of the Constitution of 1889. Thorpe VI, 3366. 



APPENDIX II 

The Advisory Opinion Statutes of the Dominion of Canada and the 
Canadian Provinces 

Dominion of Canada 

"The Governor in Council may refer to the Supreme Court for hearing 
or consideration, any matter which he thinks fit to refer; and the court 
shall thereupon hear and consider the same and certify their opinion thereon 
to the Governor in Council; provided that any judge or judges of the court 
who differ from the opinion of the majority may, in like manner, certify 
his or their opinion or opinions to the Governor in Council." This is the 
provision of the Supreme Court Act (38 Vic. c. 11) as incorporated in the 
Revised Statutes of 1886 (R. S. C. 1886, c. 135, Section 37). 

"Important questions of law or fact touching provincial legislation, 
or the appellate jurisdiction as to educational matters vested in the Governor 
in Covmcil by the 'British North America Act, 1867,' or by any other act 
or law, or touching the constitutionahty of any legislation of the Parhament 
of Canada, or touching any other matter with reference to which he sees 
fit to exercise this power, may be referred, by the Governor in Council, 
to the Supreme Court for hearing and consideration; and the court shall 
thereupon hear and consider the same. 

2. The court shall certify to the Governor in Council, for his informa- 
tion, its opinion on questions so referred, with the reasons therefor, which 
shaU be given in like manner as in the case of a judgment upon an appeal to 
the said court, and any judge who differs from the opinion of the majority 
shall, in like manner, certify his opinion and his reasons. 

3. In case any such question relates to the constitutional validity of 
any Act which has heretofore been or shall hereafter be passed by the legis- 
lature of any province, or any provision in any such Act, or in case, for any 
reason, the government of any province has any special interest in any 
such question, the Attorney General of such province . . . shall be notified 
of the hearing, in order that he may be heard if he thinks fit. 

4. The court shall have power to direct that any person interested, or 
where there is a class of persons interested, any one or more persons as 
representatives of such class, shall be notified of the hearing upon any 
reference under this section, and such persons shall be entitled to be heard 
thereon. . 



APPENDIX II 261 

5, The court may, in its discretion, request any counsel to argue the 
case as to any interest which is affected and as to which counsel does not 
appear, and the reasonable expenses thereby occasioned may be paid by 
the Minister of Finance . . . out of any moneys appropriated by ParHa- 
ment for expenses of Htigation. 

6. The opinion of the court upon any such reference, although ad- 
visory only, shall, for all purposes of appeal to Her Majesty in Council, be 
treated as a final judgment of the said court between parties." 54-5 Vic, 
c. 25, s. 4. 

"Important questions of law or fact touching (a) the interpretation of 
the 'British North America Acts' 1867 to 1886; or, (b) the constitutionality or 
interpretation of any Dominion or provincial legislation; or, (c) the appellate 
jurisdiction as to educational matters, by the 'British North America Act, 
1867,' or by any other Act or law vested in the Governor in Council; or, 
(d) the powers of the ParUament of Canada, or of the legislatures of the 
provinces, or the respective governments thereof, whether or not the parti- 
cular power in question has been or is proposed to be executed; or, (e) any 
other matter, whether or not in the opinion of the court ejusdem generis 
with the foregoing enimierations, with reference to which the Governor in 
Council sees fit to submit any such question; may be referred by the Gover- 
nor in Council to the Supreme Court for hearing and consideration; and 
any question touching any of the matters aforesaid, so referred by the 
Governor in Council, shall be conclusively deemed to be an important 
question. 

2. When any such reference is made to the court, it shall be the duty 
of the court to hear and consider it, and to answer such question so referred; 
and the court shall certify to the Governor in Council, for his information, 
its opinion upon each such question, with the reasons for each such answer; 
and such opinion shall be pronounced in like manner as in the case of a 
judgment upon an appeal to the court; and any judge who differs from the 
opinion of the majority shall in like manner certify his opinion and his 
reasons." 6 Edw. VII, c. 50, incorporated as Sec. 60 of R. S. C. 1906, 
c. 139. The other sections are essentially identical with ss. 3-6 above. 

"The court, or any two of the judges thereof, shall examine and report 
upon any private bill or petition for a private bill presented to the Senate or 
House of Commons, and referred to the court under any rules or orders 
made by the Senate or House of Commons." R. S. C. 1906, c. 139, Section 
61. 

Ontario 
An Act for expediting the decision of Constitutional and other provincial 
Questions. (R.S.O. 1897, c. 84) 



262 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

"1. The Lieutenant-Governor in Council may refer to the Court of 
Appeal or to the High Court for hearing or consideration any matter which 
he thinks fit to refer, and the Court shall thereupon hear or consider the 
same. 53 Vic. c. 13, s. 1. 

2. The Court is to certify to the Lietutenant-Govemor in Coimcil 
its opinion on the question referred, with the reasons therefor which are 
to be given in like manner as in the case of a judgment in an ordinary action; 
and any Judge who differs from the opinion of the majority may in like man- 
ner certify his opinion with his reasons therefor to the Lieutenant-Governor 
in Coimcil. 53 Vic. c. 13, s. 2. 

3. In case the matter relates to the constitutional vaUdity of any Act 
which has heretofore been or shall hereafter be passed by the Legiilatiure 
of this Province, or of some provision in any such Act, the Attorney- 
General of Canada shall be notified of the hearing in order that he may be 
heard if he sees fit. 53 Vic. c. 13, s. 3. 

4. The Court shall have power to direct that any person interested, 
or where there is a class of persons interested, any one or more persons as 
representatives of such class, shall be notified of the hearing, and such 
persons shall be entitled to be heard. 53 Vic. c. 13, s. 4. 

5. Where any interest affected is not represented by counsel, the Court 
may in its discretion request some counsel to argue the case in such interest, 
and the reasonable expenses thereof shall be paid out of the Suitors' Fee 
Fund or otherwise. 53 Vic. c. 13, s. 5. 

6. The opinion of the Court shall be deemed a judgment of the Court, 
and an appeal shall He therefrom as in the case of a judgment in an action. 
53 Vic. c. 13, s. 6. 

7. In case of the matter being appealed from the High Court to the 
Court of Appeal, sections 2, 3, 4, 5 and 6 shall apply in like manner as if 
the original reference had been to the Court of Appeal. An appeal to 
Her Majesty in Her Privy Coimcil from a judgment of any Court on a 
reference under this Act shall not be subject to the restrictions contained 
in the Revised Statute of this Province respecting appeals to Her Majesty 
in Her Privy Council. (Rev. Stat. c. 48) 53 Vic. c. 13, s. 7.'' 

Nova Scotia 
Of the decision of constitutional and other provincial questions. (R. S. 
N. S. 1900, c. 166) 

"1. The Govemor-in-Council may refer to the Supreme Court of Nova 
Scotia, for hearing or consideration, any matter which he thinks fit to refer, 
and the court shall thereupon hear and consider the same. 1890, c. 9, s. 1. 

2. The court shall certify to the Govemor-in-Council its opinion on 
the matter referred, with the reasons therefor, which are to be given in like 



APPENDIX n 263 

manner as in the case of a judgment in an ordinary action; and any judge 
who differs from the opinion of the majority shall, in hke manner, certify 
his opinion, with his reasons therefor, to the Governor-in-Council. 1890, 
c. 9, s. 2. 

3. If the matter relates to the constitutional validity of any Act which 
has heretofore been, or hereafter is passed by the legislature of this province, 
or of any provision in any such Act, the Attorney-General of Canada shall 
be notified of the hearing, in order that he may be heard if he thinks fit. 
1890, c. 9, s. 3. 

4. The court shall have power to direct that any person interested, or, 
where there is a class of persons interested, any one or more persons as 
representatives of such class, shall be notified of the hearing, and such 
persons shall be entitled to be heard. 1890, c. 9, s. 4. 

5. Where any interest affected is not represented by coimsel, the court 
may, in its discretion, request counsel to argue the case in such interest, 
and the reasonable expenses thereby occasioned shall be paid out of the gen- 
eral revenues of the province. 1890, c. 9, s. 5. 

6. The opinion of the court upon any such reference, although advisory 
only, shall, for all purposes of appeal to the Supreme Coiurt of Canada, or 
to Her Majesty-in-Coimcil, be treated as a final judgment of the court 
between parties. 1890, c. 9, s. 6." 

Manitola 
"1. The Lieutenant Governor in Coimcil may refer to the Court 
of Queen's Bench, or to a judge, for hearing and consideration, any matter 
which he thinks fit to refer, and the Court of Queen's Bench or judge shall 
thereupon hear and consider the same. 1891, c. 28, s. 1. 

2. The court or judge is to certify to the Lieutenant Governor in Coun- 
cil its or his opinion on the question referred, with the reasons therefor, 
which are to be given in like manner as in the case of a judgment in an ordi- 
nary action; and any judge who differs from the opinion of the majority 
may, in like manner, certify his opinion, with his reasons therefor, to the 
Lieutenant Governor in Coimcil. 1891, c. 28, s. 2. 

3. In case the matter relates to the constitutional validity of any Act 
which has heretofore been, or shall hereafter be, passed by the legislature 
of this province, or of some provision in any such Act, the Attorney General 
of Canada shall be notified of the hearing, in order to be heard if he sees 
fit. 1891, c. 28, s. 3. 

4. The court or judge shall have power to direct that any person inter- 
ested, or where there is a class of persons interested, one or more persons as 
representative of such class, shall be notified of the hearing, and such persons 
shall be entitled to be heard. 1891, c. 28, s. 4. 



264 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

5. Where any interest affected is not represented by counsel, the court 
or judge may in its or his discretion request some counsel to argue the case 
in such interest, and the reasonable expenses thereof shall be paid by the 
Provincial Treasurer. 1891, c. 28, s. 5. 

6. The opinion of the court or judge shall be deemed a judgment of the 
court, and an appeal shall lie therefrom as in the case of a judgment in an 
action. 1891, c. 28, s. 6." 

Note: These provisions were originally enacted as 53 Vic. c. 16, ss. 1-6 

British Columbia 
"11. The Lieutenant Governor in Council may refer to the Full Court, 
or to a judge, for hearing and consideration, any matter which he thinks 
fit to refer, and the Full Court or judge shall thereupon hear and consider 
the same. R. S. B. C. 1897, c. 56, s. 98. 

12. The court or judge is to certify to the Lieutenant Governor in 
Council its or his opinion on the question referred, with the reasons therefor, 
which are to be given in like manner as in the case of a judgment in an 
ordinary action; and any judge who differs from the opinion of the majority 
may, in like manner, certify his opinion, with his reasons therefor, to the 
Lieutenant Governor in CouncU. R. S. B. C. 1897, c. 56, s. 99. 

13. In case the matter relates to the constitutional validity of any Act 
which has heretofore been, or shall hereafter be, passed by the legislature 
of this province, or of some provision in any such Act, the Attorney General 
of Canada shall be notified of the hearing, in order to be heard if he sees 
fit. R. S. B. C. 1897, c. 56, s. 100. 

14. The court or judge shall have power to direct that any person 
interested, or where there is a class of persons interested, one or more persons 
as representative of such class, shall be notified of the hearing, and such 
persons shall be entitled to be heard. R. S. B. C. 1897, c. 56, s. 101. 

15. The opinion of the court or judge shall be deemed a judgment of 
the court, and an appeal shall lie therefrom as in the case of a judgment in 
an action. R. S. B. C. 1897, c. 56, s. 102. 

16. The reasons given by the court or members thereof, or the judge, 
for any judgment under this Act shall, as soon as practicable thereafter, 
be pubUshed in the Brit. Col. Gazette. R. S. B. C. 1897, c. 56, s. 103. " 

The above provisions were originally enacted as L. 1891, c. 5, ss. 1-6. 
By L. 1907, c. 12, ss. 4-6, "Court of Appeal" was substituted for "Full 
Court" or "Court" as the Supreme Court was replaced by the Court of 
Appeal by L. 1907, c. 10. In that form the entire act was reenacted as 
R. S. B. C. 1911, c. 45. 



APPENDIX II 265 

Quebec 
Questions referred to the Court of King's Bench by the Lieutenant-Governor 
in Council. (R. S. Q. 1909, Title III, c. 3) 

"579. The Lieutenant-Governor in Council may refer to the Court 
of King's Bench, Appeal side, for hearing and consideration, any question 
which he deems expedient, and thereupon the court shall hear and consider 
the same. 61 V., c. 11, s. 1. 

580. The court shall send to the Lieutenant-Governor in Council for 
his information its opinion duly certified upon the questions so referred, 
giving its reasons in support thereof, in like manner as in the case of judg- 
ments rendered upon appeals brought before the said court. 

Any judge who differs from the majority shall, in like manner, give his 
opinion duly certified and his reasons in support thereof. 61 V., c. 11, s. 2. 

581. The court may order that any person interested, or if there is a 
class of persons, any one or more persons as representing such class, be 
notified of the hearing upon any reference to the court under this chapter; 
and such persons are entitled to be heard. 61 V., c. 11, s. 3. 

582. The opinion of the court upon any question referred to it imder 
this chapter is advisory only and cannot be appealed from. 61 V., c. 11, s. 4. 

583. The majority of the judges of the Court of King's Bench may 
make the rules of practice necessary for carrying out the provisions of this 
chapter. 

The chief-justice of the Court of King's Bench, or if he be absent or 
sick, any other judge of that court, may fix any day or days, in or out of 
term, for the hearing, consideration and decision of the question referred 
under the authority of this chapter. 61 V., c. 11, s. 5." 

Saskatchewan 
An Act respecting the Decision of Constitutional and other Legal Questions. 
(R. S. S. 1909, c. 57) 

"1. The Lieutenant Governor in Council may refer to the supreme 
court of Saskatchewan for hearing or consideration any matter which he 
thinks fit to refer and the court shall thereupon hear or consider the same. 
1901, c. 11, s. 1. 

2. The court is to certify to the Lieutenant Governor in Coimcil its 
opinion on the question referred with the reasons therefor which are to be 
given in like manner as in the case of a judgment in an ordmary action; and 
any judge who differs from the opinion of the majority may in like manner 
certify his opinion with his reasons therefor to the Lieutenant Governor in 
CouncU. 1901, c. 11, s. 2. 

3. In case the matter relates to the constitutional validity of any Act 
which has heretofore been or shall hereafter be passed by the Legislature 



266 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

or of any Ordinance passed by the Legislative Assembly of the North- West 
Territories or of some provision in any such Act or Ordinance the attorney- 
general for Canada shall be notified of the hearing in order that he may be 
heard if he sees fit. 1901, c. 11, s. 3. 

4. The court shall have power to direct that any person interested 
or where there is a class of persons interested any one or more persons as 
representatives of such class shall be notified of the hearing and such persons 
shall be entitled to be heard. 1901, c. 11, s. 4. 

5. Where any interest affected is not represented by counsel the court 
may in its discretion request coimsel to argue the case in such interest and 
reasonable expenses thereof shall be paid out of the general revenue fund. 
1901, c. 11, s. 5. 

6. The opinion of the court shall be deemed a judgment of the court 
and an appeal shall lie therefrom as in the case of a judgment in an action. 
1901, c. 11, s. 6." 

New Brunswick 

"21. The Court shall have jurisdiction to entertain an action at the 
instance of either the Attorney General for the Dominion, or the Attorney 
General of this Province, for a declaration as to the validity of any statute, 
or any provision in any statute of this legislature, though no further relief 
should be prayed or sought; and the action shall be deemed sufficiently 
constituted if the two officers aforesaid are parties thereto. A judgment 
in the action shall be appealable like other judgments of the said Court." 
Judicature Act of 1906 (6 Edw. VII, c. 37). 

This was reenacted as section 16 of the Judicature Act of 1909 (9 Edw. 

vn, c. 5). 



APPENDIX III 

Advisory Opinion Provisions in Central and South American States 

Colombia 
"If a biU should be objected to on the ground that it is unconstitutional 
it shall be excepted from the provisions of Article 88. (Permitting repassage 
by % of both houses). In this case, if the houses insist, the bill shall pass 
to the Supreme Court, in order that this body, within six days, may decide 
upon its constitutionality. If the decision of the court should be favorable 
to the bill, the president shall give it his approval. If the decision should 
be imfavorable, the bill shall fail and be removed from the calendar." 
Article 90, of the Constitution of 1886. Annals of Am. Acad., Jan. 1893, 
Supplement. See also Rodriguez, American Constitutions, II, 337. 

Panama 
"If the executive objects to a bill as unconstitutional, and the assembly 
insists on its passage, it shall be referred to the Supreme Court of Justice, 
which shaU within six days decide upon its acceptibihty. An affirmative 
answer by the court imposes the obUgation upon the executive to sanction 
and promulgate the law. If it is negative, the project shall be placed in 
the archives." Article 105, of the Constitution of 1904. Rodriguez, 
American Constitutions, I, 415. 

Provisions Dealing with the Exercise of Other Extra- Judicial 
Functions by the Justices in Central and South American States 

Colombia 
"The judges of the Supreme Court shall be entitled to be heard in the 
discussion of bills relating to civil matters and judicial procedure. " Article 
84, of the Constitution of 1886. Annals of Am. Acad., Jan. 1893, Supple- 
ment. See also Rodriguez, American Constitutions, II, 336. 

Salvador 
"Bills not introduced by the Supreme Court of justice, dealing wdth 
matters tending to reform or repeal any provision contained in the codes 
of the RepubHc, shall not be discussed without hearing the opinion of the 
said court, and this opinion shall be given either during the same session 
of the assembly or in the following year, as the importance, urgency or 



268 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

length of the bill may demand. This provision is not applicable to laws of 
political, economic or executive order. " Article 79, of the Constitution of 
1886. Rodriguez, American Constitutions, I, 278. 

Hotiduras 

"Whenever a bill not originally emanating from the Supreme Court 
has for its object the reform or repeal of any provision in the codes of the 
Republic or of any law relating to the administration of justice, the opinion 
of that Court shall be requested, before entering into its discussion. The 
court shall give its opinion within the time which Congress may fix. " Arti- 
cle 83, of the Constitution of 1904. Rodriguez, American Constitutions, 
I, 375. 

Nicaragua 

"No bill having for its object the amendment or repeal of any pro- 
vision contained in the Civil, Penal, Commercial, Mining, or Procedure 
Codes of the Republic, not originating in the Supreme Court of justice, 
shall be discussed without first hearing the opinion of said court, said opinion 
to be given according to the importance, urgency, or magnitude of the re- 
form, either during the same session of the assembly or in the next. " Article 
71, of the Constitution of 1905, Rodriguez, American Constitutions, I, 313. 



APPENDIX IV 

Cases Cited in the Text 

It has seemed better to list the cases in chronological 
order in each state rather than to attempt an alphabetical 
arrangement where the names of so many cases are identical 
or at least very similar. The conventional name Opinion of 
the Justices is suppHed for some cases which bear no name 
in the reports. 



England 






Page 


Scire facias 


Y. B. 12 & 13 
Edw. Ill, Intro, 
ci-cv. 


1340 


3 


Commission Case 


Fortescue, 392 


1388 


8,223 


Northumberland's Case 


Rot. Pari. 5 
Hen. IV, Nos. 
11&12 


1403 


20, 223 


Earl of Arundel's Case 


Rot. Pari. 27 
Hen. VI, No. 18 


1449 


4,20 


Thorp's Case 


13 Co. Rep. 63; 
Rot. Pari. 31 
Hen. VI, Nos. 
25, 26, 27 & 28 


1453 


20 


Duke of York's Case 


Rot. Pari. 39 
Hen. VI, No. 
12 ; Fortescue, 

384 


1460 


21, 22, 223 


Stafford's Case 


Rot. Pari. 1 
Hen. VII, Nos. 
25 & 26; For- 
tescue, 389 


1485 


9, 16 


Customs' Case 


Hallam, Const'l 
Hist. I, p. 340 n 


1614 


26 


Peacham's Case 


Bacon's Works 
IV, pp. 593, 596, 
601; 2 How. St. 
Tr. 871 


1614 


10, 16, 223 


Owen's Case 


Bacon's Works 
IV, pp. 321, 600 


1614 


12 


Somerset's Case 


Bacon's Works 
IV, pp. 616-25 


1615 


12 


Commendams Case 


Bacon's Works 
IV, pp. 631, 636 


1616 


9 



270 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 



England 






Page 


Stroud, Long et al. 


3 How. St. Tr. 
235 


1629 


13 


Beckman v. Maplesden 


Bridg. 60 


1662 


14 


Paty's Case, or The 


14 East 92 n; 


1704 


4, 22, 149, 


Aylesbury Case, or 


14 How. St. Tr. 




223 


Ashby and Wliite 


695 






Whiston's Case 


Burnet's Own 
Times, p. 867 


1711 


14, 223 


Prince of Wales' Case 


Fortescue, 401; 
15 How. St. Tr. 
1195 


1717 


8, 149 


Schism Act Case 


Fortescue, 385 


1718 


26,27 


Fenwick's Case 


Fortescue, 385 




8 


Warships Case 


Fortescue, 388 


1721 


27 


Ferrer's Case 


Foster's Cr. 
Law, p. 138 


1760 


22 


Sackville's Case 


2 Eden 371 


1760 


15, 16, 32, 
149 


Head v. Head 


1 T. & R. 138 


1823 


24 


In re London & Westmin- 


2 CI. & Fin. 


1834 - 


28,29 


ster Bank 


191 






McNaghten's Case 


10 CI. & Fin. 


1843 


28, 29, 30, 




200 




165,201,214 


Bright V. Hutton 


3 H. of L. 341 


1851 


24 


In re Schlumberger 


9 Mo. P. C. 1 


1853 


17, 166 


Ex parte Co. Council of 


(1891) 1 Q. B. 


1891 


18 


Kent & Council of Do- 


725 






ver 
Allen V. Flood 


(1898) A. C. 1 


1898 


23 


Trial of Earl Russell 


(1901) A. C. 446 


1901 


23 


United States 








Haybum's Case 


2 Dall. 409 


1792 


60, 61, 195, 
250 


U. S. V. Yale Todd 


13 How. 52n 


1794 


60, 61, 250 


Marbury v. Madison 


1 Cr. 137 


1803 


162 


Gibbons v. Ogden 


9 Wheat. 1 


1824 


198 


Osborn v. Bank of U. S. 


9 Wheat. 319 


1824 


62 


Wayman v. Southard 


10 Wheat. 46 




168 


U. S. V. Ferreira 


13 How. 40 


1851 


60,61 


Gordon v. U. S. 


2 Wall. 561; 


1865 


61, 62, 63, 




117 U. S. 697 




249 


U. S. V. Klein 


13 Wall. 144 


1872 


63 


U. S. V. Jones 


119 U. S. 477 


1886 


63 


Chicago, etc. R. R. Co. v. 


143 U. S. 339 


1891 


62 


Wellman 








In re Sanborn 


148 U. S. 222 


1892 


64 



APPENDIX IV 



271 



Colorado 






Page 


Wheeler v. No. Colo. Irr. 


9 Colo. 248 




203, 204, 205 


Co. 








In the m. of the Consti- 


9 Colo. 641 


Jan. 10, 1887 


108 


tutionality of S. Rule 








No.—. 








In the m. of the Consti- 


9 Colo. 623 


Jan. 17, 1887 


97, 141, 156 


tutionahty of SB. No. 
76 
In the m. of the Consti- 








9 Colo. 623 


Jan. 29, 1887 


97, 111, 155, 


tutionahty of HB. No. 
18 
In the m. of the Consti- 






159, 216 


9 Colo. 639 


Feb. 5, 1887 


97, 118, 156, 


tutionahty of s.9 of 






157 


HB. No. 122 








In the m. of Sen. Resolu- 


9 Colo. 626 


Feb. 10, 1887 


123, 211 


tions, etc. 








In the m. of the Con?ti- 


9 Colo. 625 


Feb. 11, 1887 


140, 155 


tutionahty of HB. No. 








158 








In the m. of HB. No. 166 


9 Colo. 628 


Feb. 14, 1887 


125,128,156 


In them, of "A BHl for 


9 Colo. 629 


Feb. 15, 1887 


124, 156 


an Act to provide for 








the amicable adjusit- 








ment of grievances and 








disputes that may arise 








between employers and 








employees, and to au- 








thorize the creation of 








a Board of Arbitra- 








tion. " 








In the m. of House Reso- 


9 Colo. 622 


Feb. 23, 1887 


114,211 


lution- (re)-Taxation of 








patented mining lands 








In the m. of HB. No. 231 


9 Colo. 624 


Feb. 24, 1887 


97, 107,1118, 

155 

53, 127, 174, 


In the m. of Sen. Resolu- 


9 Colo. 620 


Mar. 7, 1887 


tion on the Subject of 






181, 185, 


Irrigation 






188, 206, 
210,212,'220 


In the m. of HB. No. 38 


9 Colo. 631 


Mar. 7, 1887 


98, 155 " ^i 


In the m. of the Consti- 


9 Colo. 635 


Mar. 11, 1887 ' 


97, 113,^156, 


tutionahty of HB. No. 






217 * 


270 & SBB. Nos. 69 & 








106 








In re Sen. Resolution Re- 


9 Colo. 630 


Mar. 18, 1887 


107, 108, 


lating to the Recall of 






211, 212 


Bills Transmitted to 








His Excellency the 








Governor for Approval 









272 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 



Colorado 






Page 


In the m. of Sen. Resolu- 


9 Colo. 632 


Apr. 1, 1887 


107, 155 


tion of Mar. 31, 1887, re 








Construction of Const. 








IV 11 in rel. to SB. No. 








56 








Inthem.ofHB. No. 203 


9 Colo. 631 


Apr. 2, 1887 


128,144.155 


Veto Power— Special Ses- 


9 Colo. 642 


(Apr. 4, 1887) 


100, 103, 


sion of Gen'l Ass'y 






211,213 


In re Election of District 


11 Colo. 373 


1888 


140, 153, 


Judges 






199, 230 


In the m. of HR. re Con- 


12 Colo. 186 


Jan. 18, 1889 


101,155,212 


stitutionality of Legis- 








lature Redistricting 








State for Legislative 








Purposes 








In re SR. rel. to Constitu- 


12 Cojo. 187 


Jan. 28, 1889 


101,155,212 


tionality of Proposed 








Reapportionment Bill 








In re SB. Providing for a 


12 Colo. 188 


Jan. 29, 1889 


118, 131, 


Board of Public Works 






151, 155, 


in the City of Denver 






216, 222 


In re SR. Relating to Ap- 


12 Colo. 287 


Feb. 18, 1889 


98, 115 


propriation of Moneys 








Belonging to Internal 








Improvement Fund 








In re SR. Relating to In- 


12 Colo. 285 


Feb. 20, 1889 


115, 156, 


t e r n a 1 Improvement 






175, 211 


Fund Provided for by 








Act of Cong, of Sept. 








4, 1841 








In re HR. Relating to 


12 Colo. 289 


Mar. 2, 1889 


98, 155 


HB. No. 116 








In re SR. Relating to SB. 


12 Colo. 290 


Mar. 2, 1889 


98, 155 


No. 1 








In re HB. No. 238 


12 Colo. 337 


Mar. 5, 1889 


97, 155 


In re SR^ Relating to SB. 


12 Colo. 339 


Mar. 5, 1889 


107, 199 


No. 45, as passed and 








approved Feb. 20, 1889 








In re HR. Relating to 


12 Colo. 359 


Mar. 12, 1889 


98, 107, 141, 


HB. No. 218 Concern- 






199 


Terms of District Court 








of El Paso Co. 








In re SR. Relating to SB. 


12 Colo. 340 


Mar. 16, 1889 


98, 140, 155 


No. 31 








In re HR. Relating to 


12 Colo. 395 


Mar. 23, 1889 


98, 118, 130, 


HB. No. 349 






156 


In re Question Pro- 


12 Colo. 399 


1889 


132, 199 


pounded by the Gover- 








nor 




' 





APPENDIX IV 



273 



Colorado 






Page 


District Attorneys. In 


12 Colo. 466 


1889 


46, 49, 50 


the m. of the Constitu- 






51, 98, 107' 


tionahty of SB. No. 65 






124, 148, ' 
175, 176, 
185, 188, 
189, 194, 
197, 199, 
200, 203, 
205, 206, 
208, 211, 
213, 217, 
219,221,228 


In re Appropriations by 


13 Colo. 316 


1889 


115, 116, 


Gen'l Ass'y 






117, 130, 
148, 157, 
175, 186, 
194, 200, 
206, 217 
146, 148, 205 


In re Funding of Co. In- 


15 Colo. 421 


1890 


debtedness 








In re Speakership of the 


15 Colo. 520 


1891 


106, 148, 


House of Representa- 






175, 205 


tives 








In re Constitutionahty of 


15 Colo. 578 


1891 


141, 155, 156 


a Court of Appeals 








In re Constitutionality of 


15 Colo. 601 


Mar. 5, 1891 


155, 217 


SB. No. 69 








In re HR. No. 25 


15 Colo. 602 


Mar. 11, 1891 


98, 107, 118, 
131, 138, 
175, 193, 
199, 212 


In re HB. No. 165 


15 Colo. 593, 


Mar. 12, 1891 


98, 118, 156, 




595 




159,192,216 


In re House Resolutions 


15 Colo. 598 


Mar. 13, 1891 


113, 122, 


Concerning Street Im- 






156, 186, 


provements 






188, 189, 192 


In re HB. No. 10, Con- 


15 Colo. 600 


Mar. 30, 1891 


121, 156, 192 


cerning the Weighing of 
Coal 
People V. Richmond et al. 








16 Colo. 274 


1891 


235 


In re Gen'l Appropriation 

Bill 
Henderson v. People ex 


16 Colo. 539 


1891 


107, 130, 199 


17 Colo. 587 


1892 


235 


rel. Wingate 








In re Continuing Appro- 


18 Colo. 192 


Feb. 6, 1893 


117, 148, 


priations 






181, 200 


In re Loan of School Fund 


18 Colo. 195 


Feb. 10, 1893 


118, 123, 
148,156.216 



274 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 



Colorado 






Page 


In re Board of Capitol 


18 Colo. 220 


1893 




128, 200 


Commissioners 










In re Kindergarten 


18 Colo. 234 


Feb. 17, 


1893 


123,155,217 


Schools 










In re Compensation of 


18 Colo. 272 


Feb. 21, 


1893 


141, 156 


Co. Judges 










In re Bounties 


18 Colo. 273 


Feb. 25, 


1893' 


98, 114, 155 


In re Extension of Bound- 


18 Colo. 288 


Mar. 14 


1893 


98, 126, 156 


aries of the City of Den- 










ver 
In re University Fund 


18 Colo. 398 


Mar. 16 


1893 


119, 123, 
175,200,216 


In re Emergency Clause 


18 Colo. 291 


Mar. 18 


1893 


107, 212 


In re Internal Improve- 


18 Colo. 317 


Mar. 25 


1893 


115,155,216 


ments 










In re Leasing of State 


18 Colo. 359 


1893 




137, 148, 200 


Lands 










In re Certificates of In- 


18 Colo. 566 


1893 




130, 200 


debtedness 










In re Priority of Legisla- 


19 Colo. 58 


1893 




52, 117, 119, 


lative Appropriations 








131, 148, 
181, 186, 
194, 222, 229 


In re Canal Certificates 


19 Colo. 63 






118, 137, 
148, 200, 217 


Mayor, etc. v. Shattuck 


19 Colo. 104 






235 


In re Governor's Procla- 


19 Colo. 333 


Jan. 24, 


1894 


108, 148, 155 


mation 










In re Amendments of Leg- 


19 Colo. 356 


Feb. 27, 


1894 


98, 107, 148, 


islative Bills 








155 


In re Penitentiary Com- 


19 Colo. 409 


1894 




136, 148, 


missioners 








175, 186, 
191, 194, 199 


In re Fire and Excise 


19 Colo. 482 


1894 




52, 133, 148, 


Commissioners 








158, 187, 
189,217,229 


People v. Martin & Peo- 


19 Colo. 565 


1894 




158, 187, 


ple V. Orr 








188, 192, 
218,229,235 


People V. State Board of 


20 Colo. 220 






235 


Equalization 










People V. McClees 


20 Colo. 403 






230 


City of Denver v. Coule- 


20 Colo. 471 






235 


han 










In re Appointments by 


21 Colo. 14 






129, 186, 


the Governor of Fire, 








188, 193, 200 


Police and Excise Com- 










missioners of the City 










of Denver 











APPENDIX IV 



275 



Colorado 



In re HB. No. 203 



In re HB. No. 107 

In re Constitutionality of 
SB. No. 293 

In re a Bill Providing that 
Eight Hours Shall Con- 
stitute a Day's Labor 

In re Constitutionahty of 
an Act, etc. 

In re Relief Bills 

In re Constitutionahty of 
Substitute for SB. No. 
83 

People ex rel. v. LeFevre 

In re Contracting of State 
Debt by Loan 

In re Casual Deficiency 

Parks V. Soldiers' and 
Sailors' Home 

People ex rel. v. District 
Attorney of Arapahoe 
Co. 

In re Constitutionality of 
SB. No. 196 

In re Inheritance Tax, 
HB. No. 122 

In re Bill — to Abohsh the 
use of Scrip in Payment 
for Labor— HB. No. 
147 

In re Consolidation of 
School Districts— SB. 
No. 23 

In re Internal Improve- 
ment Fimd 

In re State Board of 
Equalization 

In re Assessment of Pro- 
perty by the State 
Board of EquaUzation 

In re Annexation and 
Consohdation of School 
Districts, SB. No. 9 

In re HB. No. 99, to Se- 
cure to Laborers Pay- 
ment of Wages in Law- 
ful Money of the U. S. 



21 Colo. 27 



21 Colo. 32 
21 Colo. 38 

21 Colo. 29 



21 Colo. 46 

21 Colo. 62 
21 Colo. 69 



21 Colo. 218 
21 Colo. 399 

21 Colo. 403 

22 Colo. 86 

23 Colo. 150 

23 Colo. 508 
23 Colo. 492 
23 Colo. 504 

23 Colo. 499 

24 Colo. 247 

24 Colo. 446 

25 Colo. 296 

26 Colo. 136 
26 Colo. 140 



Mar. 1, 1895 



Mar. 1, 1895 
Mar. 1, 1895 

Mar. 8, 1895 



Mar. 11, 1895 

1895 

Mar. 28, 1895 



Mar. 11, 1897 
Mar. 12, 1897 
Mar. 27, 1897 

Apr. 2, 1897 

1897 
1897 

Feb. 20, 1899 
Feb. 20, 1899 



Page 



98, 99, 124, 

155, 156, 
157, 217 

98, 127, 216 
98, 126, 148, 
156,157,218 
98, 124, 155, 

156, 157, 
159,211,216 
98, 108, 156, 
200 

114, 219 
118, 155 



229, 235 
130, 199 

118, 199, 
217,219,220 
116, 207, 
230, 235, 256 
235 



115,193,200 
98, 110, 155 

m 

124, 211, 
212,216,220 



98, 156, 157, 
212 

115 

130, 148, 
186, 188 
113, 119, 

131, 181, 
186, 188, 189 

97, 123, 156, 
157, 191 

98, 124, 186, 
188, 191, 
205, 220 



276 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 



Colorado 



In re SB. No. 142, to Reg 
ulate Jury Trials in 
Civil Cases 

In re HB. No. 495, to 
Amend the Constitu- 
of the State of Colorado 

In re HB. No. 250, to 
Create a State Board of 
Assessors 

In re Application of Mor- 
gan for Writ of Habeas 
Corpus 

C. F. & I. Co. V. State 
Board of Land Com- 
missioners 

In re Leasing of State 
Lands 

Stuart V. Nance 

In re SB. No. 27, to Regu- 
late Payment of Wages 

In re SR. No. 7, to Repeal 
Constitutional Amend- 
ments 

People ex rel. v. Sours 

Denver v. Londoner 

In re SR. No. 10, Con- 
cerning Governorship 
Contest 



City of Denver v. Iliff 
In re SB. No. 416 



In re HR. No. 10 

Questions Propounded by 
Governor in re Pro- 
posed Amendments to 
the Constitution and 
Initiated and Referred 
Measures 

In re Interrogatories of 
the Senate 



26 Colo. 167 
26 Colo. 182 
26 Colo. 234 
26 Colo. 415 



14 Colo. App. 
84 

27 Colo. 99 

28 Colo. 194 

28 Colo. 359 

29 Colo. 350 



31 Colo. 369 
33 Colo. 104 
33 Colo. 307 



38 Colo. 357 
45 Colo. 394 



50 Colo. 71 



50 Colo. 84 



54 Colo. 166 



Mar. 7, 1899 

1899 

1899 

1899 

1899 

1901 
Feb..4, 1902 

Mar. 13, 1905 

Apr. 2, 1909 
Mar. 6, 1911 
1911 

Jan. 24, 1913 



Page 



98, 141, 186, 
189 

98, 127, 146, 
211,212 

107, 217 



155, 157, 
230, 235 



236 



138, 186, 

188, 200 

235 

98, 124, 186, 

191, 205 

127, 146, 

211,212,216 



126, 
152, 
190, 
200, 



235 

235 

106, 

129, 

189, 

191, 

205, 212 

235 

107, 109, 

207, 211, 

212,219,220 

98, 108, 145, 

148, 156, 

191, 222 

191 



106, 148, 

151, 152, 

160, 175, 

186, 188, 

189, 191, 

205, 213, 

222, 231 



APPENDIX IV 



277 



Colorado 






Page 


In re SR. No. 4 

In re SR. No. 9 

In re Que?tions of the 

Governor 
In re Questions by the 

Governor 
In re Interrogatories of 

the House 


54 Colo. 262 

54 Colo. 429 

55 Colo. 17 

55 Colo. 105 
162 Pac. 1144 


Feb. 28, 1913 
Mar. 26, 1913 

Jan. 24, 1917 


98, 108, 155, 
188, 200, 
211, 250 
107, 140, 155 
117, 130, 
148, 199 
138, 200 

117,200,211 


Connecticut 








Opin. of the Judges of the 

Supreme Court 
0pm. of the Judges of the 

Supreme Court 
Reply of the Judges of the 

Supreme Court to the 

Gen'l Ass'y 


30 Conn. 591 
32 Conn. 565 
Z3 Conn. 586 


1862 
1865 
1867 


71, 143, 180, 
201 

71, 180 

72, 78, 111, 
180, 187, 
224, 250 


Florida 








In the m. of the Execu- 
tive Communication of 
the 14th Oct. 1868 

In the m. of the Execu- 
tive Communication of 
the 9th of Nov. 1868 

In the matter of the Exe- 
cutive Communication 
of the 28th Jan. 1869 

In the m. of the Execu- 
tive Communication of 
Jan. 29th, 1869 

In the m. of the Execu- 
tive Communication of 
June 2nd, 1870 

In the m. of the Execu- 
tive Communication of 
Feb. 6th, 1871 

In the m. of the Execu- 
tive Communication of 
Feb. 1st, 1872 

In the m. of the Execu- 
tive Communication of 
Feb. 19th, 1872 

In the m. of the Execu- 
tive Communication of 
Feb. 29th, 1872 


12 Fla. 651 
12 Fla. 653 

12 Fla. 686 

12 Fla. 689 

13 Fla. 687 

13 Fla. 699 

14 Fla. 277 
14 Fla. 283 
14 Fla. 285 


Oct. 19, 1868 
Nov. 24, 1868 

Jan. 29, 1869 

June 6, 1870 
Feb. 11-25, 1871 
Feb. 5, 1872 
Feb. 19, 1872 
Mar. 1, 1872 


47, 128, 148 

47, 105, 128, 
139, 150, 
158, 174, 
179, 192, 194 
47, 148, 174, 
217, 224 

130, 150, 152 
146, 151 
114, 151 
128, 151 
108,117,148 
108, 148 



278 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 



Florida 






Page 


In the m. of the Execu- 


14 Fla. 289 


Apr. 29, 1872 


138, 150, 


tive Communication of 






151, 174, 


Apr. 17th, 1872 






179, 224 


In the m. of the Execu- 


14 Fla. 318 


Sept. 27, 1872 


148 


tive Communication of 








Sept. 23rd, 1872 








In the m. of the Execu- 


14 Fla. 320 


Jan. 24, 1873 


47, 125, 140, 


tive Communication of 






148 


Jan. 16th, 1873 








In the m. of the Execu- 


15 Fla. 735 


Oct. 28, 1875 


140, 149 


tive Communication of 








Oct. 5th, 1875 








In the m. of the Execu- 


15 Fla. 739 


Nov. 9-15, 1875 


137, 151 


tive Communication of 








Nov. 8th, 1875 








Advisory Opinion. In 


16 Fla. 841 


Jan. 19, 1877 


140, 149 


the m. of the Tenure of 








Office of Judges of the 








Circuit Courts 








In re Executive Commun- 


23 Fla. 297 


May 10, 1887 


48, 54, 127, 


ication Concerning 






149, 174, 


Powers of Legislature 






179 


Vacancies in Elective Co. 


25 Fla. 426 


Jan. 16, 1889 


132 


Officers 








In re Advisory Opin. to 


31 Fla. 1 


Jan. 20, 1893 


137 


the Governor 








In re Advisory Opin. to 


34 Fla. 500 


Jan. 5, 1895 


145 


the Governor 








In re Opin. of Supreme 


39 Fla. 397 


Feb. 12, 1897 


136, 194, 197 


Court 








In re Advisory Opin. 


43 Fla. 305 


Oct. 8, 1901 


48, 108, 130 


In re Advisory Opin. to 


45 Fla. 154 


May 5, 1903 


132, 140 


the Governor 








In re Members of Legis- 


49 Fla. 269 


July 28, 1905 


132 


lature 








Advisory Opin. to Gover- 


50 Fla. 169 


July 29, 1905 


117, 197 


nor 
In re Opin. of Justices 


54 Fla. 136 


July 17, 1907 


130, 148, 197 


Advisory Opin. to the 


61 Fla. 1 


May 20, 1911 


138, 148 


Governor 








In re Advisory Opin. to 


62 Fla. 7 


June 22, 1911 


135, 150 


Governor 








In re Opin. of Judges 


62 Fla. 4 


July 17, 1911 


131, 197 


In re Opin. of Judges 


62 Fla. 1 


Jan. 8, 1912 


132 


In re Advisory Opin. to 

Governor 
In re Advisory Opin. to 


64 Fla. 1 


Sept. 24, 1912 


131, 145, 197 


64 Fla. 16 


Sept. 26, 1912 


132 


the Governor 








In re Advisory Opin. to 


64 Fla. 21 


Sept. 28, 1912 


135 


the Governor 









APPENDIX IV 



279 



Florida 






Page 


In re Advisory Opin. to 
Governor 

In re Advisory Opin. to 
the Governor 

In re Opin. of Justices 

Opin. of the Justices 

In re Opin. of the Jus- 
tices 

In re Opin.s of the Jus- 
tices 

In re Opin. of the Jus- 
tices. In re Circuit 
Judges 


64 Fla. 168 

65 Fla. 434 

67 Fla. 423 

67 Fla. 489 

68 Fla. 560 

69 Fla. 632 
69 Fla. 653 


Dec. 14, 1912 

May 14, 1913 

Apr. 30, 1914 
May 20, 1914 
Dec. 17, 1914 

May 21, 1915 

June 2, 1915 


133 
131 

132, 140, 141 

133, 140 
137, 140, 197 

133, 141, 
150,197,224 
133, 140, 
141, 197 


Illinois 




W. 




People ex rel. v. Bissell 


19 111. 229 


1857 


70, 249 


Iowa 








Morrison v. Springer 


15 la. 304 




72 


Kentucky 








Opin. of the Judges of the 
Court of Appeals 

In re Board of Sinking 
Fund Commissioners 


79 Ky. 621 
32 S. W. 414 


1881 
1895 


73, 132, 180 

73, 139, 177, 
180, 191 


Maine 








Opin. of the Justices 
Opin. of the Justices 
Opin. of the Justices 
C^in. of the Justices 
Opin, of the Justices 
Opin. of the Justices 

Opin. of the Justices 

Opin. of the Justices 
Opin. of the Justices 

Opin. of the Justices 
Opin. of the Justices 
Opin. of the Justices 
Opin. of the Justices 

Opin.s of the Justices" 
of the S. J. Court ^ 


3 Me. 477 
3 Me. 481 

2 Me. 439 

3 Me. 484 
3 Me. 487 
6 Me. 486 

6 Me. 506 

6 Me. 514 

7 Me. 483 

7 Me. 492 
7 Me. 497 
7 Me. 502 
16 Me. 479 

18 Me. 458 


Mar. 6, 1821 
Feb. 15, 1822 
Sept. 18, 1822 
Feb. 18, 1825 
(Feb. 26, 1825) 
(Jan. 11, 1826) 

Jan. 30-Feb. 
4, 1830 

Feb. 4-10, 1830 
Feb. 15, 1830 

(Jan. 26, 1831) 
June, 1831 
Sept., 1831 
(Feb. 11, 1840) 

(Feb. 4, 1842) 


41, 100 
41, 128 
41, 128, 219 
140, 150, 151 
152 

101, 143, 
150, 151, 
152, 159 

129. 150. 151 

102. 104. 152 

102, 103, 
104, 136 
142, 143 
142, 143 
130 

126, 154, 
206, 219 
100, 101, 
102, 110, 
150. 217 



280 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 



Maine 



Opin.s of the Justices of 
the S. J. Court 

Opin. of the Justices 

Const'l Law 

Statement of Facts, and 
Questions 

Opin.s of the Justices of 
the S. J. Court 

Opin. of the Justices of 
the S. J. Court on the 
Constitutionality of the 
Personal Liberty Laws 
of the State of Maine 

Opin. of the Justices 

Opin. of the Justices of 
the S. J. Court 

Opin. of the Justices 

Taxation of Nat'l Banks 

Opin. of the Justices 
State V. Cleveland 

Opin. of the Justices 



Thompson v. Pittston 
Opin.s of the Justices of 

the S. J. Court 
Allen V. Jay 
Opin. of the Justices of 

the S. J. Court 
Opin.s of the Justices of 

the S. J. Court 
Opin. of the Justices of 

the S. J. Court 
Opin.s of the Justices of 

the S. J. Court 
Opin.s of the Justices of 

the S. J. Court 
Opin.s of the Justices of 

the S. J. Court 
Opin.s of the Justices of 

the S. J. Court 
Opin.s of the Justices of 

the S. J. Court 
Opin.s of the Justices of 

the S. J. Court 
Opin.s of the Justices of 

the S. J. Court 



25 Me. 567 

33 Me. 587 
35 Me. 563 
38 Me. 597 

44 Me. 505 

46 Me. 561 



52 Me. 595 
50 Me. 607 

53 Me. 587 

53 Me. 594 

54 Me. 602 
58 Me. 564 

58 Me. 590 



59 Me. 545 
64 Me. 588 

60 Me. 124 

61 Me. 601 

62 Me. 596 
64 Me. 596 
68 Me. 582 
68 Me. 587 
68 Me. 589 
68 Me. 593 

68 Me. 594 

69 Me. 585 
69 Me. 596 



(Nov. 6, 1845) 

(May 31, 1851) 
Jan., 1854 
(Feb. 15, 1855) 

(Mar. 26, 1857) 

Feb. 1861 



July 2, 1863 
Dec. 23, 1863 

Feb. 18, 1867 
Feb. 26— Mar. 
28, 1867 
Dec. 10, 1867 
Dec. 1870 

Feb. 10-13, 1871 



1871 

Nov. 28— Dec. 

12, 1871 

1872 

Aug. 10, 1872 

July 16, 1874 

Dec. 6, 1875 

Feb. 9, 1876 

Dec. 22, 1877 

Feb. 19— Mar 
11, 1878 
June 20, 1878 

June 20, 1878 



Mar. 10, 1879 



Page 



133, 143 

100, 102, 217 
102, 150 
131, 133, 143 

143, 150 

126, 137, 150 



146 

118 
113, 150 

133, 144, 150 

136, 150, 

167,181,225 

118, 121, 

150, 151, 

194, 206, 225 

235 

41, 133, 144, 

150 

235 

128 

125, 128, 150 

128, 133, 143 

110 

133, 143 

143, 213 

146, 152 

140, 141, 152 

126 

146 



APPENDIX IV 



281 



Maine 






Page 


Questions Submitted, etc. 


70 Me. 560 


Jan. 3, 1880 


102, 104, 


with the Answers of the 






133, 143, 


Justices of the S. J. 






159, 225 


Court 








Statement and Questions 


70 Me. 570 


Jan. 16, 1880 


41, 102, 103 


Submitted — with the 






128, 133, 


Answers of the Justices 






143, 152. 


of the S. J. Court 






179,210,226 


Statement and Questions 


70 Me. 600 


Jan. 17, 1880 


102, 103, 


Submitted with An- 






133, 159, 


swers of the Justices of 






179, 210. 


the S. J. Court 






225, 249 


Question Submitted — 


72 Me. 542 


Sept. 1, 1881 


132, 150, 


with Answers of the 






171, 194, 


Justices of the S. J. 






210, 227 


Court 








In re State Bonds 


81 Me. 602 


Apr. 1, 1889 


118 


Donnell v. Joy 


85 Me. 119 




235 


Bangor v. Frankfort 


85 Me. 128 




235 


Question Submitted by 


85 Me. 545 


Sept. 7, 1891 


133, 171 


the Governor with An- 








swers of the Justices of 








' the S. J. Court 








In re Pardoning Power of 


85 Me. 547 


1893 


135 


Governor and Council 








Opin.s of the Justices 


95 Me. 564 


Dec. 2, 1901 


101, 103, 
104, 151, 
152, 171, 
172, 194, 
208,213,227 


In re Qpin. of Justices 


97 Me. 590 


July 1, 1903 


121 


In re State Taxation 


97 Me. 595 


July 1, 1903 


111,213 


In re Opin. of the Justices 


99 Me. 515 


Feb. 27, 1905 


118, 150 


In re R. R. Taxation 


102 Me. 527 


Mar. 20, 1907 


111 


In re Opin. of the Justices 


103 Me. 506 


Mar. 10, 1908 


104, 122, 
151, 171, 
172, 213, 
214, 227 


In re Opin. of the Justices 


108 Me. 545 


Oct. 30, 1911 




Sawyer v. Gilmore 


109 Me. 169 


1912 


227, 235 


LaughHn v. City of Port- 


111 Me. 486 


Apr. 4, 1914 


227, 235 


land 








In re Opin. of the Jus- 


114 Me. 557 


Aug. 12, 1915 


134, 144 


tices. Initiative and 








Referendum 









282 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 



Massachusetts 






Page 


/Opin. of the Justices 


126 Mass. 547 


Feb. 22, 1781 


2,^, 34, 118, 
147, 158, 


^^ Opin. of the Justices 


14 Mass. 470 


Nov. 12, 1784 


220, 256 
34, 35, 125 


Opin. of the Justices 


14 Mass. 472 


Nov., 1787 


34, 35, 125 


Opin. of the Justices 


3 Mass. 567 


May 9, 1791 


34, 107 


Opin, of the Justices 


3 Mass. 568 


Jan. 3, 1807 


34, 40, 143, 

178 

179, 181 


Commonwealth v. Smith 


9 Mass. 530 


1810 


^^^liOpin. of the Justices 


7 Mass. 523 


Feb. 15, 1811 


100 


iX^^^^^J Opin. of the Justices 


8 Mass. 548 


1812 


35, 134 


f y Opin. of the Justices 


15 Mass. 536 


1815 


101, 143 


, Opin. of the Justices 


7 Pick. 130n 


May 30, 1825 


35, 166, 183, 
187, 191, 
193, 223 


Opin. of the Justices 


3 Pick. 517 


1826 


101 


. Adams v. Bucklin 


7 Pick. 125 


Apr., 1829 


187,223,235 


n^O; Opin. of the Justices 


11 Pick. 537 


Feb. 14, 1832 


142 


' ' Opin. of the Justices 


6 Cush. 573 


Jan. 24, 1833 


35, 145 


Opin. of the Justices 


18 Pick. 575 


Mar. 31, 1836 


143 


Opin. of the Justices 


1 Allen 197n 


Oct. lO; 1837 


35, 134 


\ Opin. of the Justices 


22 Pick. 571 


Oct. 18-, 1838 


125, 178 


5rV^^' \ Opin. of the Justices 


6 Cush. 575 


Mar. 29, 1839 


35, 100 


"^t Opin. of the Justices 


23 Pick. 547 


Feb. 17, 1840 


101, 143 


jb Opin. of the Justices 


3 Cush. 584 


Apr. 6, 1840 


35, 139, 193 


Opin. of the Justices 


1 Mete. 572 


Mar. 1, 1841 


146, 193 


Opin. of the Justices 


1 Mete. 580 


Mar. 10, 1841 


110, 123, 
142, 193 


Opin. of the Justices 


5 Mete. 587 


Mar. 15, 1843 


110,142,193 


\^ Opin. of the Justices 


5 Mete. 591 


Mar. 9, 1844 


142, 193, 
256 


^^^Ogin, of the Justices 


5 Mete. 596 


Mar. 13, 1844 


166, 183, 
187, 193, 


7 6 • 

■^ Opin. of the Justices 






217, 224 


3 Cush. 586 


Mar. 14, 1849 


134 


Opin. of the Justices 


6 Cush. 578 


Mar. 28, 1851 


125, 143 


V) * Opin. of the Justices 


9 Cush. 604 


Sept. 20, 1852 


166, 193, 
217, 218 
135, 178 


Opin. of the Justices 


11 Cush. 604 


Nov. 17, 1853 


^ Opin. of the Justices 
3 f /Opin. of the Justices 


3 Gray 601 


July 2, 1855 


128, 129, 
132, 139, 140 


8 Gray 20 


Mar. 26, 1857 


193 


^ / Opin. of the Justices 


10 Gray 613 


Mar. 11, 1858 


100 


JjA Opin. of the Justices 


13 Gray 618 


Aug. 20, 1859 


135 


^^ \ Opin. of the Justices 


14 Gray 614 


Dec. 23, 1859 


125, 136 


XJDpin. of the Justices 


9 AUen 585 


Nov. 3, 1864 


140. 181, 193 


f Green v. Commonwealth 


12 Allen 155 




140, 181, 
193, 206, 224 


*•( '»> ' Opin. of the Justices 


13 AUen 593 


Jan. 29, 1867 


130, 178 



APPENDIX IV 



283 



Massachusetts 






Page 


■ ^ ( Opin. of the Justices 


99 Mass. 636 


Feb. 25, 1868 


107 


t^^ ) C^in. of the Justices 


107 Mass. 604 


June 29, 1871 


140 


[ Opin. of the Justices 


115 Mass. 602 


Feb. 20, 1874 


158 


^!^iii. of the Justices 


117 Mass. 599 


Mar. 5, 1875 


134 


^ ^ C^in. of the Justices 
' ' C^in. of the Justices 


117 Mass. 603 


Apr. 20, 1875 


125 


120 Mass. 600 


May 23, 1876 


135, 217 


Opin. of the Justices 


122 Mass. 594 


Mar. 7, 1877 


101 


Opin. of the Justices 


122 Mass. 600 


May 14, 1877 


38, 101, 103, 


■ 1 






167, 168, 
170, 171, 
172, 173, 
176, 193, 
209,210,224 


i Opin. of the Justices 


124 Mass. 596 


Apr. 8, 1878 




' - Opin. of the Justices 


126 Mass. 557 


Dec. 31, 1878 


18, 30, 118, 
170, 179, 


t 






191, 206, 
209, 216, 
217, 221, 
256 


Opin. of the Justices 


126 Mass. 603 


Mar. 10, 1879 


129 


Opin. of the Justices 


132 Mass. 600 


Jan. 3, 1882 


134, 193 


Opin. of the Justices 
■^^Cpin. of the Justices 


135 Mass. 594 


June 5, 1883 


107 


136 Mass. 578 


Nov. 19, 1883 


128, 132 


_• Opin. of the Justices 


136 Mass. 583 


Nov. 27, 1883 


134, 144 


^ ^ ^ Opin. of the Justices 


138 Mass. 601 


Feb. 24, 1885 


125, 193 


C^in. of the Justices 


142 Mass. 601 


May 27, 1886 


100 


Opin. of the Justices to 


145 Mass. 587 


Sept. 22, 1887 


132,193,215 


the Governor and 








Council 








Tunctions of Judiciary 


148 Mass. 623 


May 4, 1889 


159, 170, 
184, 196, 
208, 209, 


,1,0 . 






224, 236 


' Opin. of the Justices 


150 Mass. 586 


Mar. 18, 1890 


132 


In re PubUc Lighting 


150 Mass. 592 


May 28, 1890 


121, 193 


In re Power of Legislature 


150 Mass. 598 


June 4, 1890 


171,172,196 


to Require Opinion 








Ppin. of the Justices 
Opin. of the Justices. In 


154 Mass. 603 


Dec. 31, 1891 


128, 131, 193 


155 Mass. 598 


May 7, 1892 


121, 193 


re HB. No. 519 








/ j> Opin. of the Justices 
1 ' In re Municipal Suffrage 


157 Mass. 595 


Apr. 28, 1893 


100, 125 


160 Mass. 586 


Feb. 28, 1894 


144, 149, 150 


to Women 








Watson V. Needham 


161 Mass. 404 


1894 


236 


Citizens' Gas Light Co. v. 


161 Mass. 432 


1894 


236 


Wakefield 








n "TJTre HB. No. 1230 

In re Opin. of the Justices 


163 Mass. 589 


May 6, 1895 


123 


165 Mass. 599 


Apr. 25, 1896 


125, 128 



284 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 



^ 



j6 



^\ 



1^ 



Massachusetts 






Page 


Opin. of the Justices 


166 Mass. 589 


Sept. 26, 1896 


132, 150 


In re Opin. of the Justices 


167 Mass. 599 


Feb. 25, 1897 


137 


In re Opin. of the Justices 


175 Mass. 599 


June 5, 1900 


114 


"TKreHB. No. 1291 


178 Mass. 605 


Apr. 25, 1901 


143, 150 


In re Municipal Fuel 


182 Mass. 605 


Jan. 28, 1903 


121, 150 


Plants 








In re Bounties to Veter- 


186 Mass. 603 


Sept. 21, 1904 


107, 113, 


ans 






114, 206 


In re Opin. of the Justices 


190 Mass. 605 


Apr. 30, 1906 


117 


In re Opin. of the Justices 

1 


190 Mass. 611 


Apr. 30, 1906 


114, 171, 
184, 189, 
206, 207, 
209, 210, 
217, 218, 
224, 236 


In re Opin. of the Justices 


190 Mass. 616 


May 29, 1906 


135 


Farwell v. Boston 


192 Mass. 15 


1906 


235 


In re Opin. of the Justices 


193 Mass. 605 


Apr. 30, 1907 


120, 152, 191 


In re Opin. of the Justices 


195 Mass. 607 


Mar. 23, 1908 


110 


Nichols V. Election Com- 


196 Mass. 410 


1907 


235 


missioners 








'"Opin. of the Justices 


196 Mass. 603 


May 21; 1908 


110,113,152 


, In re Opin. of the Justices 


201 Mass. 609 


May 18, 1909 


135 


to the Governor and 








Council 








In re Opin. of the Justices 


204 Mass. 607 


Mar. 4, 1910 


122 


In re Opin. of the Justices 


204 Mass. 616 


Mar. 31, 1910 


122 


In re Opin. of the Justices 


207 Mass. 601 


Mar. 10, 1911 


120 


In re Opin. of the Justices 


207 Mass. 606 


Apr. 4, 1911 


141 


In re Opin. of the Justices 


208 Mass. 603 


Apr. 17, 1911 


122 


In re Opin. of the Justices 


208 Mass. 607 


Apr. 17, 1911 


120 


In re Opin. of the Justices 


208 Mass. 610 


Apr. 17, 1911 


116, 130 


In re Opin. of the Justices 


208 Mass. 614 


Apr. 28, 1911 


107, 109, 209 


to the House of Repre- 








^^^sentatives 








*" In re Opin. of Justices 


208 Mass. 616 


May 15, 1911 


110 


In re Opin. of Justices 


208 Mass. 619 


May 16, 1911 


123 


In re Opin. of Justices to 

Senate 
In re Opin. of Justices 


208 Mass. 625 


June 13, 1911 


122 


209 Mass. 607 


July 24, 1911 


124,158,219 


Inje Opin. of the Justices 


210 Mass. 609 


Jan. 12, 1912 


135, 178 


"TrTre Opin. of the Justices 


211 Mass. 605 


May 3, 1912 


120 


In re Opin. of the Justices 


211 Mass. 608 


May 6, 1912 


114, 150, 


u 






209, 210 


In re Opin. of the Justices 


211 Mass. 624 


May 6, 1912 


114, 122 


In re C^in. of the Justices 


211 Mass. 618 


May 8, 1912 


124 


In re Opin. of the Justices 


211 Mass. 620 


May 27, 1912 


40, 120, 178 


"In re Opin. of the Justices 


211 Mass. 630 


May 31, 1912 


40, 129, 159, 
178,209,215 



APPENDIX IV 



285 



i' 



jT""' Ma'^sachusetts 






Page 


In re Opin. of the Justices 
In re Opin. of the Justices 
In re Opin. of the Justices 

Attorney-General v. Hav- 
erhill Gas Light Co. 
""McNichol's Case 
I In re Opin. of the Justices 
In re Opin. of the Justices 

Young V. Duncan 
Woods V. Woburn 
Tn're Opin. of the Jus- 
'f^ tices. In re Census 
In- re Opin. of the Jus- 
tices. In re Taxation 
In re Opin. of the Justices 
Dinan v. Swig 
In re Opin. of the Justices 
In re Opin. of the Justices 


211 Mass. 632 
214 Mass. 599 

214 Mass. 602 

215 Mass. 394 

215 Mass. 497 

216 Mass. 605 

217 Mass. 607 

218 Mass. 346 
220 Mass. 416 
220 Mass. 609 

220 Mass. 613 

220 Mass. 627 
223 Mass. 516 
115N. E. 921 
115 N. E. 978 


June 21, 1912 
June 2, 1913 
June 10, 1913 

1913 

Mar. 20, 1914 
May, 1914 

1914 
1915 
Apr., 1915 

Apr. 12, 1915 

May 3, 1915 

1916 

Apr. 16, 1917 

Apr. 23, 1917 


129, 159 
114, 224 
41, 178, 224, 
235, 256 
235 

158 

128,209,210 
111, 171, 
212,216 
224, 235 
224, 235 
100, 126 

110, 113 

124, 150 
217,235,250 
144,196,212 
120, 188 


Minnesota 








In pie m. of the Apphca- 
tion of the Senate 

Rice V. Austin 
State V. Dike 


10 Minn. 78 

19 Minn. 103 

20 Minn. 363 


1865 


70, 71, 78, 
180, 195, 
250, 257 

71, 138, 180 
71, 138, 180 


Missouri 








Advisory Constitutional 
Opinion of the Judges 
of the Supreme Court 

Advisory Constitutional 
Opinion of the Judges 
of the Supreme Court 

Advisory Constitutional 
Opinion of the Judges 
of the Supieme Court 

Opin. of Court in Re- 
sponse to Governor 

Opin. of the Court in Re- 
sponse to Governor 

In the m. of the No. Mo. 
R. R. 


37 Mo. 129 
37 Mo. 135 

37 Mo. 139 

43 Mo. 351 
49 Mo. 216 
51 Mo. 586 


1865 
1865 

1866 

1869 

Jan. 23, 1872 

1873 


44, 114 

44, 45, 121, 
173, 176, 
184, 193, 
197, 203, 
205, 208, 
210, 216 

45, 118, 197 

45, 141 

45, 130, 150, 

175 

45, 119, 173, 

184. 194, 231 



286 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 



Missouri 



Opin. of Supreme Court 
Judges on Township 
Organization Law 

Opin. of the Judges of the 
Supreme Court in Re- 
sponse to a Resolution 
of the Senate 

Opin. of the Court in Re- 
sponse to the Resolu- 
tion of the General As- 
sembly 

In the m. of Inquiries 
Submitted by His Ex- 
cellency Governor Silas 
Woodson 

Nebraska 



In re RR. Commissioners 

In re School Fund 

In re Board of Public 
Lands and Buildings 
In re Babcock 

In re State Warrants 

In re Appropriations for 

Deputies, etc. 
In re Senate File 31 

In re Quaere of the Pro- 
cedure of the Two 
Houses 

In re House Roll 284 

Miller v. WTieeler 

In re Board of Purchase 

and Supplies for State 

Institutions 

State V. Fleming 



New Hampshire 



Merrill v. Sherburne 
Opin. of the Court 

An Opin. Delivered by 
the Court in Pursuance 



55 Mo. 295 
55 Mo. 215 

55 Mo. 497 

58 Mo. 369 



15 Nebr. 679 

15 Nebr. 684 

18 Nebr. 340 

21 Nebr. 500 

25 Nebr. 659 
25 Nebr. 662 

25 Nebr. 864 

31 Nebr. 262 

31 Nebr. 505 

33 Nebr. 765 
37 Nebr. 425 

70 Nebr. 523 



1 N. H. 199 
62 N. H. 704 

4 N. H. 565 



Feb. 3, 1873 
1874 

Feb. 23, 1874 

1874 



1883 

1883 

1885 

1887 

1889 
1889 

1889 

1891 

Mar. 10, 

1893 

1903 



1891 



Nov. 25, 1816 
(June 25, 1827) 



Page 



45, 150, 197 
221 

45, 140, 148 



45, 119, 173, 
184, 194, 208 



45, 138, 148, 
184, 193, 197 



75, 138, 180, 

206, 224, 256 

75, 123, 130, 

180 

75, 131, 180 

75, 137, 180, 
201 

75, 180 
75, 115, 137, 
180, 192, 201 
75, 108, 145, 
180, 207 
75, 126, 129, 
180, 191, 
201, 220 

75, 118, 180, 
191,207,219 
76 

76, 78, 137, 
177, 180, 
186, 195, 
201, 206 

76, 250 



169 

39, 121, 132, 
183, 203 
110, 126 



APPENDIX IV 



287 



New Hampshire 






Page 


of a Resolve of the 








House of Representa- 








tives 








Opinion 


8 N. H. 573 


June, 1835 


100 


An Opin. of the Justices 


7 N. H. 599 


June, 1835 


112, 126 


of the Superior Court 








of Judicature, etc. 








Opin. of the Justices of 


25 N. H. 537 


Nov. 1852 


112, 121, 


the Superior Court of 






167, 206, 


Judicature, etc. 






217,220,224 


Judicial Opinion 


35 N. H. 579 


Feb. 5, 1858 


107, 149 


Opin. of the Justices of 


41 N. H. 550 


June 15, 1860 


141 


the Supreme Judicial 








Court 








Opin. of the Justices of 


41 N. H. 553 


June, 1861 


112,150,220 


the Supreme Judicial 








Court 








Opin. of Justices 


44 N. H. 633 


June 26, 1863 


71, 112, 143 


Opin. of the Justices of 


45 N. H. 590 


July 22, 1864 


132 


the Supreme Judicial 








Court, etc. 








Opin. of the Justices of 


45 N. H. 593 


July 29, 1864 


217, 219 


the Supreme Judicial 








Court, etc. 








Opin. of the Justices of 


45 N. H. 595 


Aug., 1864 


112, 143, 


the Supreme Judicial 






152, 220 


Court, etc. 








Opinion 


45 N. H. 607 


Sept. 23, 1864 


107,112,217 


Opin. of the Justices 


53 N. H. 634 


Mar. 19, 1866 


39, 110, 179, 
216 


Opin. of the Justices 


53 N. H. 640 


May 28, 1873 


133,179,207 


0pm. of the Justices 


52 N. H. 622 


Aug. 20, 1873 


107,149,256 


Opin. of the Justices 


56 N. H. 570 


June 8, 1875 


101, 103, 134 


Opin. of the Justices 


56 N. H. 574 


June 8, 1875 


101, 103, 
134,218,250 


Opin. of the Court 


58 N. H. 621 


Apr. 23, 1877 


134 


Opin. of the Justices 


62 N. H. 706 


July 23, 1877 


39, 133. 179 


Opin. of the Court 


58 N. H. 623 


July 10, 1879 


113,172,220 


Opin. of the Court 


60 N. H. 585 


June 10, 1881 


126, 150, 
172, 206, 
209, 221 


Opin. of the Justices 


62 N. H. 706 


Aug. 20, 1883 


128, 133 


Opin. of the Court 


63 N. H. 625 


July 30, 1885 


106 


In re School Law Manual 


63 N. H. 574 


Mar. 12, 1886 


179 


Opin. of the Justices 


76 N. H. 612 


July 22, 1889 


39, 145 


C^in. of the Justices. In 


65 N. H. 673 


Dec, 1889 




re Chap. 304, Laws 








1887 








Bingham v. Jewett 


66 N. H. 382 


Jan. 6, 1891 


235 



288 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 



New Hampshire 






Page 


In re Opin. of the Justices 


66 N. H. 629 


Mar. 31, 1891 


152,191,220 


Dow V. R. R. 


67 N. H. 1 


1886 


235 


Opin. of the Justices 


67 N. H. 601 


Sept. 6, 1892 


146, 172, 
194, 209 


Opin. of Justices 


70 N. H. 638 


Feb. 13, 1899 


126, 137, 
194,217,224 


Amoskeag Mfg. Co. v. 


70 N. H. 336 


1900 


235 


Manchester 








Opin. of the Justices 


70 N. H. 640 


(Jan. 3, 1901) 


138, 147, 213 


Opin. of the Justices 


70 N. H. 642 


Mar. 6, 1901 


118 


In re Probate Blanks 


71 N. H. 621 


Mar. 8, 1902 


147, 179 


Opin. of the Justices 


72 N. H. 601 


Feb. 25, 1903 


137,191,210 


Opin. of the Justices 


72 N. H. 605 


July 25, 1903 


137, 210 


In re Opin. of the Justices 


73 N. H. 618 


Feb. 20, 1905 


144,216,219 


In re Opin. of the Justices 


73 N. H. 621 


Jan. 2, 1906 


132, 172, 
192, 210 


In re Opin. of the Justices 


73 N. H. 625 


Mar. 13, 1906 


137, 209, 254 


In re C^in. of Justices 


74 N. H. 606 


July 19, 1907 


112, 137, 
150,151,209 


Wyatt V. State Board of 


74 N. H. 552 


June 2, 1908 


235, 249 


Equahzation 








In re Opin, of the Justices 


75 N. H. 613 


Apr. 6, 1909 


128, 172, 
191,194,210 


In re Opin. of the Justices 


75 N. H. 622 


Feb. 1, 1910 


123, 130 


In re Opin. of Justices 


75 N. H. 624 


Feb. 1, 1910 


137 


Murchie v. Clifford 


76 N. H. 99 


1911 


235 


In re Opin. of the Justices 


76 N. H. 586 


Feb. 28, 1911 


144 


In re Opin. of the Justices 


76 N. H. 588 


Mar. 6, 1911 


110, 112, 
113, 192 


In re Opin. of the Justices 


76 N. H. 597 


Mar. 20, 1911 


111, 172, 
194, 206, 
209, 219, 
220, 224 


In re Opin. of the Justices 


76 N. H. 601 


Oct. 4, 1911 


107, 130, 
194, 217 


In re Opin. of the Justices 


76 N. H. 609 


Jan. 24, 1913 


112, 113 


French v. Lyme 


77 N. H. 63 




235 


In re Opin. of the Justices 


77 N. H. 606 


Nov, 4, 1914 


137, 191 


In re Opin. of the Justices 


77 N. H. 611 


Mar. 1, 1915 


110, 112, 
113,150,216 


In re Opin. of the Justices 


100 Atl. 49 


Feb, 15, 1917 


114 


In re Opin. of the Justices 


99 Atl. 999 


Feb. 27, 1917 


125 


New Jersey 








In re "An Act to Amend 


83 N. J. L. 303 


Sept. 27, 1912 


93, 109, 180, 


an Act Entitled 'An 






191, 225 


Act Concerning PubUc 








Utilities' " 









APPENDIX IV 



289 



New York 






Page 


Livingston v. Vanlngen 
Gibbons v. Ogden 
People V. Green 

Opin. of the Justices 

Matter of Madden 
Matter of Emmett 
Matter of Fairchild 
Matter of Norton 
Cataract Power Co. v. 
Buffalo 


9 Johns. 507 
17 Johns. 488 
1 Denio. 614 

Deb. Mass. 
Conv. 1853, I, 
p. 138 
148 N. Y. 136 

150 N. Y. 538 

151 N. Y. 359 
158 N. Y. 130 
115 N.Y. Supp. 
1045 


1812 
1820 
1845 

1846 

1895 
1896 
1897 
1899 
1909 


240 

240 

66, 136, 180, 

191 

66, 126, 145, 
180,219,220 

213, 249 
249 

213, 249 
213, 249 

67, 177 


North Carolina 








Opin. of the Justices 

In the m. of Hughes 

Opins. of the Justices of 
the Supreme Court, 
etc. 


31 N. C. App. 
61 N. C. 57 
64 N. C. 785 


1849 
1866 
1870 


68, 142, 180, 
191,256 

69, 135, 180, 
249 

68, 78, 100, 
180, 250, 254 


Ohio 








State V. Baughman 


38 Ohio St. 455 


1882 


74, 78, 127, 
177,180,249 


Oklahoma 








State V. Johnson 

In re Opin. of the Judges 

Opin. of the Judges 

In re Opin. of the Judges 

In re Opin. of the Judges 

In re Opin. of Judges 

In re Opin. of the Judges 


21 Okla. 40 
25 Okla. 76 

3 Okla. Cr. 315 

4 Okla. Cr. 594 
6 Okla. Cr. 18 
6 Okla. Cr. 210 
8 Okla. Cr. 467 


May 6, 1908 
Nov. 9, 1909 
Dec. 13, 1909 
Jan. 5, 1911 
May 29, 1911 
Oct. 10, 1911 
Dec. 31, 1912 


77, 136, 224 
77, 136, 250 
77, 136, 224 
77, 136 
77, 136, 224 

77, 136, 224 

78, 136, 181, 
187 


Pennsylvania 








Respubhca v. DeLong- 

champs 
Report of the Judges of 

the Supreme Court, 

etc. 
Chase v. Miller 


1 Dall. Ill 
3 Binney 595 

Am. L. Reg. 2 

(N. S.) 146 


1784 
1808 


64, 135, 180, 
191 

65, 146, 147 
180, 224 

72 



290 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 



Rhode Island 






Page 


Trevett v. Weeden 


Thayer, Cases 
I, p. 73 




42, 147 


Opin. of the Supreme 


3 R. I. 299 


June 14, 1854 


42, 126, 141, 


Court 






172 


Taylor v. P lace 


4 R. I. 324 




169, 206, 
224, 249, 250 


Opin. of the Judges of the 


4 R. I. 585 


Oct. 24, 1857 


128 


Supreme Court, etc. 








Opin.s of the Judges of 


4 R. I. 587 


Nov. 23, 1857 


130 


the Supreme Court, etc. 








Opin.s of the Judges of 


4 R. I. 588 


Jan. 7, 1858 


130 


the Supreme Court, etc. 








Opin.s of the Judges of 


4 R. I. 583 


Feb. 3, 1858 


135 


the Supreme Court, etc. 








Opin. of the Judges of the 


5 R. I. 598 


Oct. 7, 1858 


134 


Supreme Court, etc. 








In re the Registry Laws 


12 R. I. 580 


Nov. 12, 1877 


142 


In re the Voting Laws 


12 R. I. 586 


Mar. 30, 1878 


142 


In re the PolHng Lists 


13 R. 1. 729 


Apr. 13, 1881 


142 


]n re the Liquor Loca- 


13 R. I. 733 


July 28, 1881 




tions 








In re the Providence Vo- 


13 R. I. 737 


Apr. 11, 1882 


142 


ters 
In re the Realty Voters 


14 R. I. 645 


Nov. 16, 1882 


142 


In re the Constitutional 


14 R. I. 649 


Mar. 30, 1883 


126, 145, 


Convention 






219, 220 


In re the Newport Char- 
ter 
In re the Census Superin- 


14 R. I. 655 


Apr. 12, 1883 


142 


15 R. I. 614 


Apr. 24, 1885 


131 


tendent 








In re the Plurality Elec- 


15 R. I. 617 


Feb. 9, 1887 


144 


tions 








In re the Representation 


15 R. I. 621 


Feb. 9, 1887 


131 


Vacancy 








In re the Congressional 


15 R. I. 624 


Apr. 7, 1887 


126, 134 


Election 








In re the Investigating 


16 R. I. 751 


Oct. 5, 1887 


131 


Commission 








In re the Constitutional 


16 R. I. 754 


Nov. 24, 1888 


142 


Amendment 








In re the Narragansett 


16 R. I. 761 


Jan. 16, 1889 


144 


Election 








In re the Ballot Act 


16 R. I. 766 


Jan. 22, 1890 


143 


In re Canvassers' Powers 


17 R. I. 809 


Oct. 4, 1890 


142 


In re the Vote Marks 


17 R. L 812 


Oct. 28, 1890 


144 


In re the Agricultural 


17 R. I. 815 


Dec. 2, 1890 




Funds 








In re Building Inspectors 


17 R. I. 819 


Jan. 17, 1891 




In re the Representative 


17 R. I. 820 


Feb. 6, 1891 


144 


Election 











APPENDIX IV 


291 


Rhode Island 






Page 


In re the Ballot Provision 


17 R. I. 825 


Mar. 3, 1891 


143 


Opin. of the Justices 


18 R. I. 824 


1893 


106, 137, 144 


In re Qualification of Vo- 


19 R. I. 614 


July 23, 1896 


142 


ters 








Opin. of the Justices. In 


19 R. I. 729 




143. 150 


re Voting Machine 








Opin. of the Justices 


22 R. I. 651 


Nov. 21, 1900 


142 


In re Police Commission- 


22 R. I. 654 


Apr. 30, 1901 


137 


ers 
In re Voting Machines 


23 R. I. 630 


Oct. 23, 1901 


143 


In re Opin. of Judges 


23 R. I. 635 


Feb. 6, 1902 


140 


In re Opin. of the Justices 


24 R. I. 625 


Mar. 20, 1902 


140 


Opin. to the Governor 


24 R. I. 630 


June 14, 1902 


142 


In re Ten Hour Law for 


24 R. I. 603 


June 27, 1902 


150 


Street Ry. Corpora- 








tions 








In re Election of School 


28 R. I. 629 


Mar. 2, 1903 


42, 144 


Committee of City of 








Woonsocket 








In re Abolishing School 


27 R. I. 598 


Apr. 10, 1905 


114, 123, 153 


Districts 








In re R. R. Commissioner 


28 R. I. 602 


Apr. 1, 1907 


131 


In re Decision of Justices 


28 R. I. 607 


Apr. 21, 1908 


132, 150 


(Elections by Senate) 








In re Opin. of Supreme 


29 R. I. 611 


Feb. 4, 1909 


108, 145 


Court 








In re Pothier, Governor 


31 R. I. 565 


Dec. 23, 1910 




in re Opin. of the Justices 


34 R. I. 191 


Apr. 17, 1912 


118, 122 


In re Opin. to Governor 


35 R. I. 166 


Feb. 24, 1913 


130 


South Dakota 








In re Construction of 


2 S. D. 58 


May 12, 1891 


113, 147 


Revenue Law 








In re Construction of 


2S. D. 71 


May 20, 1891 


123, 147 


School Law, Chap. 9, 
Sec. 7 
In re Limitation of Taxa- 








3 S. D. 456 


Jan. 14, 1893 


54, 111 


tion 








In re Construction of 


3 S. D. 548 


Feb. 23, 1893 


46, 107, 186, 


Constitution 






194, 195, 
206 


In re Supreme Court Va- 


4 S. D. 532 


Jan. 12, 1894 


131, 140 


cancy 








In re State Warrants 


6S. D. 518 


Feb. 8, 1895 


54, 117, 130, 
219, 220 


In re State Census 


6 S. D. 540 


Feb. 18, 1895 


54. 55, 126 


In re State Bonds 


7 S. D. 42 


May 2, 1895 


118, 130 



292 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 



South Dakota 






Page 


In re Chap. 6, Sess. L. 

1890 
In re House Resolution 

No. 30 
In re Opin. of Judges 
In re Opin. of the Judges 


8 S. D. 274 

10 S. D. 249 

13 S. D. 191 
34 S. D. 650 


Feb. 25, 1896 

Oct. 19, 1897 

Apr. 14, 1900 
May 22, 1914 


54, 129, 176, 

186, 208 

54, 108, 176, 

186,210,232 

138 

54, 111, 176 

192, 232 


Vermont 








Opin. of the Judges of the 
Supreme Court, etc. 


37 Vt. 665 


Apr. 1, 1864 


73, 143, 180, 
201, 219 


Wisconsin 








State ex rel. Chandler v. 
Main 


15 la. 340 




72 


Dominion o^ Canada 








The Bill to Incorporate 
the Christian Brothers 
Queen v. Robertson 

In re New Brunswick 

Penitentiary 
In re Canada Temperance 

Act of 1878 and County 

of Perth 
In re Canada Temperance 

Act of 1878 and County 

of Kent 
The Thrasher Case 
The Manitoba Ry. Cro; .- 

ings Case 
In re County Courts of 

British Columbia 
In re Certain Statutes of 

— Manitoba Relating 

to Education 
Brophy et al. v. Attorney- 
General of Manitoba 


Cass. Prac. 59 

6 Can. S. C. R. 

127 

Cameron, p. 267 

Cass. Dig. 105 

Cass. Dig. 106 

Casi. Dig. 480 
Cameron, p. 267 

21 Can. S. C. R. 
446 

22 Can. S. C. R. 

577 

(1895) A. C. 202 


1876 
1879 
1880 

1892 

Feb. 20, 1894 

1895 


90 

79, 249 
80 
80 

SO 

80 
80 

81, 142 

82, 139, 177, 
224 

82 



The Privy Council appeals from Canadian Advisory Opinions are listed 
under Canada rather than under England. 



In re Provincial Jurisdic- 


24 Can. S. C. R. 


Jan. 15, 


1895 


82, 122, 190 


tion to Pass Prohibi- 


170 








tory Liquor Laws 










Attorney- General for On- 


(1896) A. C. 348 


1896 




82, 195, 224 


tario V. x'Vttorney-Gen- 










eral for Dominion et al. 











APPENDIX IV 



293 



Dominion of Canada 






Page 


In the matter of Jurisdic- 


26 Can. S. C. R. 


Oct. 13, 1896 


83, 122, 224 


tion over Provincial 


444 






Fisheries 








Attorney-General of Can- 


(1898) A. C. 700 


May 26, 1898 


84, 184 


ada V. Attorneys-Gen- 








eral for Ontario, Que- 








bec and Nova Scotia 








In the m. of the Criminal 


27 Can. S. C. R. 


May 1, 1897 


128 


Code — Relating to Big- 


461 






amy 
Union Colliery Co. of 


27 Can. S. C. R. 


Oct. 22, 1897 


91, 92, 93, 


British Columbia v. 


637 




125, 225 


Attorney-General of 








British Columbia et al. 








Attorney-General of 


33 Can. S. C. R. 


1903 


93 


Canada v. Attorney- 


458 






eral of Ontario 








In the m. of the Represen- 


33 Can. S. C. R. 


Apr. 29, 1903 


104 


tation in the House of 


475 






Commons, etc. 








In the m. of the Represen- 


33 Can. S. C. R. 


June 8, 1903 


84, 105, 190 


tation of Prince Edw. 


594 




224 


Island, etc. 








Attorney-General for P. 


(1905) A. C. 37 


1905 




E. I. V. Attorney-Gen- 








eral for Dominion. 








Attorney-General for 








New Brunswick v. At- 








torney-General for 








Dominion 








In the m. of the Jurisdic- 


35 Can. S. C. R. 


Feb. 27, 1905 


80, 84, 122 


tion of a Province to 


581 




125, 177 


Legislate Respecting 








Abstention from Labor 








on Sunday 








In re Ry. Act Amend- 


36 Can. S. C. R. 


May 15, 1905 


125 


ment, 1904 


136 






Grand Trunk Ry. Co. v. 


(1907) A. C. 65 


1907 




Attorney-General of 








Canada 








In re International and 


36 Can. S. C. R. 


May 15, 1905 


122, 139 


Interprovincial Ferries 


206 






In re Guarantee of Bonds 


42 Can. S. C. R. 


Dec. 24, 1909 




of Grand Trunk Pacific 


505 






Ry. Co. 








Grand Trunk Pac. Ry. 


(1912) A. C. 204 


1912 




v. Rex 








In re Criminal Code 


43 Can. S. C. R. 


June 15, 1910 


86, 142, 177 




434 




187, 225 



294 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 



Dominion of Canada 






Page 


In re References by the 


43 Can. S. C. R. 


Oct. 11, 1910 


17, 86, 122, 


Governor-General in 


536 




177, 225 


Council 








Attorney-General for On- 


(1912) A. C. 571 


1912 


5, 6, 17, 18, 


tario V. Attorney-Gen- 






25, 30, 87, 


eral for Canada 






165, 177, 
190,195,225 


Ontario 








Attorney-General of On- 


(1894) A. C. 189 


1894 


92 


tario V. Attorney-Gen- 








eral for Dominion of 








Canada 








Attorney-General for Do- 


(1898) A. C. 247 


1898 


92, 133 


minion V. Attorney- 








General for Ontario 








Attorney-General for On- 


(1903) A. C. 524 


1903 


83, 92, 215 


tario V. Hamilton St. 








Ry.Co. etal. 








In re Ontario Medical 


13 Ont. L. R. 


1906 


92, 216, 225 


Act 


501 







APPENDIX V 

Bibliography 

The cases listed in Appendix IV are, of course, the basi for the fore- 
going study. These, together with the legislative records of a few States, 
make up practically all the source material consulted. There is very little 
secondary material on the advisory opinion — an essay by J. B. Thayer, 
and a few articles and notes in sundry law magazines. Included with these 
in the Hst below are several works of a general nature to which reference 
has been made in the text. 

Adams, John, The Life and Works of. Edition of 1851. 
Albany Law Journal, XL, p. 158, and LIX, p. 214. 

American Law Review, XXIV, p. 369, XXVIII, p. 614, and XXIX, p. 711 
American Year Book. 

Annals of Congress, and the Senate and House Journals of various States. 
Appleton's Cyclopedia of American Biography. 
Bacon's Works. Edition of 1740. 

Baldwin, James F.: The King's Covmcil During the Middle Ages. 1913. 
Baldwin, Simeon E.: The American Judiciary. 1905. 
Beard, Chas. A.: The Supreme Court and the Constitution. 1912. 
Bryce, James: The American Commonwealth. Edition of 1888. 
Burgess, John W.: The ReconciHation of Government with Liberty. 1915. 
Burnet: History of his own Time. Edition of 1838. 
Cameron, E. R.: The Supreme Court Act (Canada) and Rules. 1907. 
Coke, Sir Edward: The Institutes of the Laws of England. Edition of 1684. 
Colorado, Encyclopedia of Biography of. 
Cooley, Thomas M.: Principles of Constitutional Law. Thhd Edition. 

1898. 
Cooley, Thomas M.: Constitutional Limitations. Sixth edition. 1890. 
EUiott's Debates. 

Federalist, The, by Hamilton, Madison and Jay. 
Fortescue, Sir John: The Governance of England. Plummer's edition. 

1885. 
Foster: Crown Law. 1762. 
Hale, Matthew: Jurisprudence, 

Hallam, Henry: The State of Europe During the Middle Ages. Edition 
of 1853. 



296 DEPARTMENTAL COOPERATION IN STATE GOVERNMENT 

Hallam, Henry: Constitutional History of England. Edition of 1854, 
Harvard Law Review, HI, p. 288; IV, p. 37; X, p. 50; XIII, p. 358; and 

XXVI, p. 655. 
Holcombe, A. N,: State Government in the United States. 1916. 
Jameson, John A.: Constitutional Conventions. Fourth edition. 1887. 
Jefferson, Thomas, The Writings of. Edition of 1861. 
Macqueen, John: The Appellate Jurisdiction of the House of Lords and 

Privy Council. 1842. 
Madison, James: Journal of the Federal Convention. Edition of 1894. 
Maine: Debates, etc., of Convention of 1819 for the State of. Jeremiah 

Perley. 1820. 
Maine Law Review. 

Maitland, F W.: Constitutional History of England. (1888). 1908. 
Marshall, John: The Life of George Washington. 1807. 
Massachusetts: Journal Massachusetts Constitutional Convention of 1779- 
80. 

Journal of Debates and Proceedings in the Constitutional 
Convention of 1820-21. Edition of 1853. 
Debates and Proceedings in the Convention of 1853. 
Judicial History of Massachusetts, Emory Washburn. 
Nation, The: XLIX, p. 476, and L, p. 50. 

New York: Debates and Proceedings of the New York Convention of 1821. 
New York State Constitution Annotated. 1915. 
Proposed Amendments of the Constitutional Convention of 
the State of New York. 1915. 
New York. E. H. Roberts. 1887. 
Pellew, George: The Life of John Jay. 1900. 

Poore, Ben. P.: Constitutions and Charters of the United States. 1878. 
Rodriguez, Jose I.: American Constitutions. 1905. 
Rolls of Parhament. 

Sparks, Jared: The Writings of George Washington, 1836. 
Statutes and Session Laws of the United States and Various States, England, 

The Dominion of Canada and the Canadian Provinces. 
Story on the Constitution. 

Stubbs, WilKam: Constitutional History of England. 1883. 
Thayer, James B.: Cases on Constitutional Law. 1895. 

Legal Essays. 
Thorpe, Francis N.: Federal and State Constitutions, 1909. 
Tocqueville, Alexis de: Democracy in America. 
Walsh, Correa M.: The Pohtical Science of John Adams, 1915. 
Whitelocke: Memorials. 

Willoughby, W. W.: The Constitutional Law of the United States. 1910. 
Year Books, The. 



INDEX 



Adams, John, responsible for introduc- 
tion of advisory opinion in Massa- 
chusetts, 32-33. 

Adjournment of legislature, no opinion 
after, 213. 

Advisory opinion, history, 1-95 ; prac- 
tice, 96-160; interpretation, 161- 
237; place in modem state, 248-257. 

Advisory opinion in England model 
for advisory opinion in United 
States, 18, 31-32. 

Amicicuriae, 190, 192,207. 

Appointment and removal of execu- 
tive officers, questions relating to, 
131-133. 

Appropriations, questions relating to, 
114-117. 

Attempts to repeal advisory opinion in 
Massachusetts, 35-38. 

Canada, history of advisory opinion 
in, 79-90; interpretation, 177, 195, 
201, 224-225; text of advisory 
opinion in, 260-261. 

Canadian Provinces, history of ad- 
visory opinion in, 90-93; text of 
advisory opinion in, 261-266. 

Careless reporting of advisory opin- 
ions, 34-35, 39, 41, 52. 

Case, meaning of, in United States 

courts, 61-62. 
Colombia, history of advisory opinion 
in, 94, 245 ; judicial participation in 
legislation in, 94, 243-244; text of 
advisory opinion in, 267. 
Colorado, history of advisory opinion 
in, 48-53; source of interrogations in 
97-99; interpretation, 174-175, 184- 
186, 187-189, 197-201, 202-205, 
210-213, 216, 217-218, 221-222, 
228-231; judicial recommendations 
to legislature, 242; text of advisory- 
opinion in, 259. 



Composition and organization of exe- 
' cutive department, questions re- 
lating to, 128-129. 
Composition of legislature, questions 

relating to, 100-104. 
Connecticut, history of advisor}- opin- 
ion in, 71-72. 
Constitutional questions, limitation of 
advisory opinion to, in ]Missouri, 
43, 196-197; in Florida, 47, 196-197. 
Council of revision, 238-240. 
Counsel, lack of assistance of, 29, 76, 

81, 190-192, 206-207. 
Court, not justices, to give advisory 
opinions in Colorado, 51-52, 148, 
221-222. 
Court of claims, 62-64. 
Criminal cases, judicial ad\'ice in, in 
New York, 65-66; in Oklahoma, 76- 
78. 
Criminal law, questions relating to 

execution of, 135-136. 
Delaware, historv of advisory opinion 

in, 69. 
Desirability of ad\asory opinion, 248- 

257. 
Ecuador, judicial initiation ot legisla- 
tion in, 243. 
Education, questions relating to, 122- 

123. 
Effect of advisory opinions, in Massa- 
chusetts, 38-39, 158-159; in Colo- 
rado, 115-116, 154^158; upon m- 
terrogators generally, 153-160, 234- 
235. 
Electoral duties of executive, ques- 
tions relating to, 133-134. 
Eminent domain, questions relating 

to, 122. 
England, history of advisory opmion 

in, 1-30. 
Executive questions referred, 128-139. 



297 



298 



INDEX 



Existing statutes, construction of, in 
advisory opinions, 45, 76, 109, 193- 
202. 

Ex parte objection, 106, 182-192. 

Extra-judicial consultation in the 
United States, under a constitu- 
tional clause, 30-55, 178-179; when 
not authorized by the constitution 
55-78, 176-177, 179-180. ^ 

Fact, questions of, no advisory opin- 
ion on, 217-218. 

Financial administration, questions 
relating to, 129-131. 

Financial powers and duties of legis- 
lature, questions relating to, 110- 
120. 

Florida, history of advisory opinion 
in, 46-48; interpretation, 173-174, 
224; text of advisory opinion in, 
259. 

Form of advisory opinions, per curiam 
in Colorado, 52, 147-148, 222; gen- 
erally, 146-153. 

Future action, no opinion unless possi- 
biUty of, 103-104, 208-214. 

Governor alone can consult judges, in 
Florida, 46, 174; in South Dakota, 
54. 

Guatemala, judicial initiation of legis- 
lation in, 243. 

Hawaii, history of advisory opinion in, 
93-94. 

History of advisory opinion, in Eng- 
land, 1-30; in the United States, 
30-78 ; in Canada, 79-93 ; in Hawaii, 
94; in Colombia, 95; in Panama, 95. 
For different States of United 
States, see under name of each 
State. 

Honduras, judicial participation in 
legislation in, 94-95, 243-244; text, 
267. 

House of Lords in England, right to 
consult judges in its judicial capa- 
city, 18-25, 246; in its legislative 
capacity, 25-30. 

Illinois, attitude toward advisory 
opinion in, 69-70; revisory council 
in, 240. 

Impeachments, assistance of judges 
in, 246-247. 



Important question and solemn occa- 
sion clause, basis in English prac- 
tice, 16, 32; not in Rhode Island, 
42 ; narrow form in Missouri, 43-45 ; 
in Colorado, 52; in South Dakota, 
54; in Canada, 81; interpretation 
of, 111,167-168, 207-208. 

Individual opinions of justices should 
be given in general, 149-151, 221- 
222. 

Interpretation of advisory opinion 
clause, in Missouri, 44-45 ; generally, 
161-237. 

Judges in England, duty to advise 
king in his judicial capacity, 2-6; 
duty to advise king in his executive 
capacity, 6-18; duty to advise House 
of Lords in its judicial capacity, 18- 
25; duty to advise House of Lords 
in its legislative capacity, 25-30. 

Judicial Committee of Privy Council, 
advisory nature of, 5-6, 17. 

Judicial discretion to refuse opinions, 
161-177. 

Judicial nature of questions referred, 
205-206. 

Judicial notice of facts not stated in 
reference, 218-219. 

Judicial participation in legislation, 
in Colombia, 94; in Salvador, 94- 
95; in Honduras, 94-95; in Nicara- 
gua, 94-95. 

Judicial recommendations to legisla- 
tures, in United States, 241-242; 
in Venezuela, 242; in Panama, 242. 

Judiciary, questions relating to, re- 
ferred for advisory opinions, 139- 
142. 

Kentucky, history of advisory opinion 
in, 73-74. 

King of England, right to consult 
judges in his judicial capacity, 2-6; 
in his executive capacity, 6-18. 

Labor, questions relating to, 123-125. 

Legal force of advisory opinions, in 
early Enghsh practice, 14-16, 223; 
to House of Lords, 23-24, 223; in 
Oklahoma, 77, 224; in Canada, 81, 
83, 91, 224-225; in Maine, 225-227; 
in Colorado, 228-231; generally, 
223-227. 



INDEX 



299 



Legislative questions referred, 100- 
128. 

Maine, history of advisory opinion in, 
40-41; interpretation, 171-172, 194, 
201, 213, 225-227; text of advisory 
opinion in, 258. 

Majority opinions, 150-152. 

Massachusetts, history of advisory 
opinion in, 30-39; interpretation, 
166, 167-171, 178-179, 183-184, 193, 
201, 205-206, 209, 215-216, 218, 221, 
223-224; text of advisory opinion 
in, 258. 

Military questions referred, 134. 

Minnesota, history of advisory opin- 
ion in, 70-71. 

Miscellaneous questions referred for 
advisory opinions, 145-146. 

Missouri, history of advisory opinion 
in, 43-46; interpretation, 44-45, 173, 
184, 203, 205, 216,^ 221, 231-232; 
text of advisory opinion in, 258. 

Nature of questions, 99-146. 

Nebraska, history of advisory opinion 
in, 74-76. 

Nicaragua, judicial participation in 
legislation in, 94-95, 243-244; text, 
267. 

North Carolina, history of advisory 
opinion in, 68-69; practice, 191. 

New Hampshire, history of advisory 
opinion in, 39-40; interpretation, 
172, 179, 183, 191, 194, 201, 203, 
206, 209-210, 213, 218, 221, 224; 
assistance of judges in impeach- 
ments, 246; text of advisory opin- 
ion in, 258. 

New Jersey, extra-constitutional con- 
sultation of judges in, 109, 191. 

New York, history of advisory opin- 
ion in, 65-68 ; coimdl of revision in, 
238-240; assistance of judges in im- 
peachments, 247. 

Obhgation of judges to give advisory 
opinions, 161-177. 

Ohio, history of advisory opinion in, 
74. 

Oklahoma, history of advisory opin- 
ion in, 76-78; practice, 224. 

Organization and procedure of legis- 
lature, questions relating to, 105- 
109. 



Panama, history of advisory opinion 
in, 95, 245; judicial recommenda- 
tions to legislature in, 242; text of 
advisory opinion in, 267. 

Pending cases, opinions relating to, in 
early Enghsh practice, 9-14; in the 
United States, 180-181. 

Pending legislation, advisory opinions 
relating to, in Colorado, 49-50, 
210-212; in Canada, 84-85; in New 
Hampshire, 112. 

Pennsylvania, history of advisor>^ 
opinion in, 64-65; assistance of 
judges in impeaclunents in, 247. 

Per curiam repUes, in Colorado, 52, 
147-148, 222; generally, 148-149. 

Peru, judicial initiation of legislation 
in, 243. 

PcHce power of legislature, questions 
relating to, 120-122. 

Possibihty of future cases no reason 
for refusing opinions, 181-205. 

Precedents, force of advisory opinions 
as judicial, in Colorado, 51-52, 228- 
231; in Canada, 83, 224-225; in 
Mame, 225-227; generaUy, 223-227. 

Private rights, ad\dsory opinions 
should not affect, 106, 180-181, 182- 
202. 

PubUcation of advisory opinions re- 
quired, in Missouri, 43-44, 146; in 
Colorado, 52, 146. 

Publici juris questions, 202-205. 

QuaUty of advisory opinions, 153-154, 
234, 255-256. 

Questions of too general nature, no 
obligation to answer, 29, 215-217. 

Revisory council, in federal conven- 
tion of 1787, 55-57, 240; in New 
York, 238-240; in Illinois, 240. 

Rhode Island, history of advisory 
opinion in, 41-43; interpretation, 
172-173, 201, 224; text of advisory 
opinion in, 258. 

Right of judges to refuse opinions, 
161-177. 

Salvador, judicial participation in leg- 
islation in, 94-95, 243-244; text, 267. 

San Domingo, judicial initiation of 
legislation in, 243. 



300 



INDEX 



Separation of powers theory in rela- 
tion to advisory opinion, 33, 37, 162, 
168-169, 248, 251. 

Source of interrogations, 96-99. 

South Dakota, history of advisory 
opinion in, 54-55; interpretation, 
175-176, 201, 232; text of advisory 
opinion in, 259. 

Success of advisory opinion, in Massa- 
chusetts, 38-39; in New Hampshire, 
40; in Rhode Island, 43; in Colora- 
do, 52-53; in South Dakota, 54-55. 

Suffrage and elections, questions re- 
lating to, 142-145. 



Taxation, questions relating to, 110- 

114. 
Time, lack of, as excuse for no opinion, 

112-113, 219-221. 
United States, history of advisory 

opinion in, 30-78; extra-judicial 

consultation of judges in the federal 

government, 55-64. 
Venezuela, judicial recommendations 

to legislature in, 242. 
Vermont, history of advisory opinion 

in, 72-73; assistance of judges in 

impeachments in, 247. 
Writing, requirement that advisory 

opinions be in, 42, 146 



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